
    Hinton Bros. Lumber Co. v. Polk.
    [78 South. 179,
    In Banc.]
    Master and Servant. Injuries to servant. Evidence. Cause of injury.
    
    Under the facts in this case, which was a suit by a servant against his master, for injury sustained by the master’s failure to furnish him a safe place in which to work, the court held that plaintiff’s injury resulted not because he was furnished with an unsafe place in which to work but for the reason that he placed himself in a dangerous position not called for by his work, in order to discharge a duty incumbent not upon him, but upon a fellow employee.
    Appeal from the circuit court of Lamar county.
    HoN. A. E. Weathersby, Juidge.
    Suit by J. ft. Polk against the Hinton Bros. Lumber Company. From a judgment for plaintiff, defendant appeals.
    Appellant is a corporation engaged in tbe manu: facture of lumber, and appellee was one of its employees, who was injured, as be alleges, because of appellant’s negligence. In connection with appellant’s other machinery it operates a planing mill in which there are sis planing machines for the dressing of lumber after it has been sawed. These machines are placed in a line with and at a distance of ten to fifteen feet from each other. Behind these machines and running at right angles therewith is a “lumber run,” about ten feet wide, consisting of three two-inch “turtle back” steel chains. These chains run either in grooves or on top of the floor, which does not clearly appear from the evidence, and move slowly forward and convey the lumber, after it comes from the planers, to the grader pit, where it is assorted, and then conveyed to other portions of the building. The floor, between each of these planing machines and the first chain, and then continuing across the lumber run between each of the chains, is covered with a strip of sheet iron or tin twenty-fonr inches wide. This tin or sheet iron slopes on each side of the chains, so as to bring the ends thereof next to the chain about on a level therewith. There was an open space between each planer and the lumber run, and also on the side of the lumber run opposite the planers, on which employees could stand while keeping . the lumber from becoming tangled when being conveyed by the lumber run. The lumber, as it came from the planing machines, was shoved across the lumber run; and this tin or sheet iron was placed there for the purpose of enabling this to be accomplished without the lumber-being obstructed by the chains, but in the cross-examination of appellant’s foreman appear the following questions and answers:
    “Q. That chain is kind of an oval shape isn’t it;, and the side where the lumber strikes it comes down: on an incline this way? A. Yes, sir. Q. It is fixed! that way so that the lumber would push over on the-chain? The purpose of fixing it that way was so that the lumber would push over the chain in event that it didn’t happen to have that tin there? A. Yes, sir. Q. So that' it would just slip over there, whether it had a tin or not, that was the purpose of it? A. Yes, sir.’’
    . These strips of sheet iron, because of the continual passing over them of the lumber, soon became very slick. The lumber, unless kept straight by employees stationed at the run for that purpose, while being conveyed thereon would become tangled and would drift into piles. Two employees were stationed at the run, one on each side thereof, for that purpose. Two of these planing machines were equipped with tilting tables; that is, with a board extending from the machine and across the lumber run and so adjusted that when a piece of lumber was shoved from the • planer thereon it would tilt automatically and place the lumber across the run. Appellee had been employed by appellant for some time, and seemed to discharge whatever ¡duties appellant’s foreman imposed upon him. On the occasion in question he was directed by the foreman to take the place of one of the men stationed at this lumber run and assist in keeping the lumber straight thereon. While so engaged, the man working with him on the opposite side of the run left temporarily, and, while he was away, the lumber became tangled on his side of the run — that is, on the side opposite that on which appellee was stationed— whereupon appellee walked across the chains for the purpose of straightening the lumber, and stepped upon the sheet iron, slipped thereon, fell and was injured. The circumstances surrounding the accident can best be stated in appellee’s own language in answer to questions propounded to him by counsel:
    “Q. What were you doing at the time you received your injury? A. I was straightening the lumber there in Mr. Crook’s place. It takes two men there, and he wanted to step aside, and I stepped up there to straighten it while he stepped to one side, and I had to go across the chain to where the lumber was crooked, and when I got up there where it was crooked, and 'straightened it, and looked back, it was crooked at the other end, and I started back, and when I went to turn my foot slipped, and I fell, and my hip hit the chain. Q. TIow come your foot to slip? A. I stepped on that tin, and it was just as slick as it could be, and my foot slipped out from under me, and I fell and hurt my hip. Q. Tell the jury whether you could have gotten to that lumber to have moved it without stepping on that tin. A. Not on that side of it. Q. Tell the jury whether that was the side you were required to work on. A. Well. I was assisting for the other man down there. That was not my side, but it was crooked up there, and nobody there to attend to it, and ! had to go across there, ■and I bad to cross on that tin on the way across. There was no other way of getting across there without going way around out of my way, and I didn’t have time to do that . . . Q. Now from the place where you stepped and slipped, you could have stepped about two steps and got out on the floor and went down to that, couldn’t you, by taking about two steps out of the way? A. No, you see I had to run in there between the two chains. Q. "Well, you could have stepped out there to the edge and walked down and walked back in, couldn’t you, by just walking a- little more? A. Yes, by talcing some time I could. Q. By taking about one step that way and going down one and back one you could have gotten to it without crossing there? A- I could have by going way out of the way. . . . Q. Now you say there was another fellow whose duty it was to straighten the other side? A. Yes, sir; it was my place to straighten it out on one side, and he was on the other. Q. Did Mr. Hubert (appellant’s foreman) tell you to take both of those'fellows’ places? A. No, he didn’t tell me to take their places,, but that lumber was tangled, and there was nobody there to untangle it. He sent me.there to take Mr. Crook’s place. Mr. Sam Slade’s son, Steve Slade, was on the other side. Q. So the lumber that you went to straighten out was ■on Mr. Slade’s side where he worked? A. I had been there, and had. straightened that out, and started back to straighten mine. Q. How come you over there, though, was to do the Slade boy’s work? A. There was nobody over there to do it, and it was going to get to the grade crooked. Q. Now Mr. Hubert didn’t tell you to do Slade’s work too, but he just sent you to take Crook’s work? A. Yes, sir; I asked him, ‘Must I take Mr. Crook’s place?’ and he said, ‘Yes.’ He didn’t tell me to take Mr. Slade’s place, but of course, he would have it to do; it was all tangled up, and there was nobody there to untangle it and get it straight. A. But he didn’t tell, you to take Slade’s place; lie told you to take Crook’s? A. Yes, sir. ' Q. • And yon had often, yon say, taken that man’s place? Had you ever taken Slade’s place before — I mean when yon were working there in their places? A. I don’t recollect exactly about taking Mr. Slade’s place, but Ü have taken the places of the hoys working there. Q. In other words, yon have worked all along that chain? A. Yes, sir. . . . Q. While yon were working in Mr. Moran’s place yon ivould have to take the othersr places often also? A. Yes, sir; nearlv every day. A great many times I did. That was not the first time I had took that job for Mr. Crook and the others there. I had been helping them ever since I had been there. Q. So that job. so far as the jcb was concerned, was not a now job to yon? A. No, sir. Q. And the lumber would get crooked, and yon would have to straighten it often — that was your business when yon were holding that job? A. Yes, sir. Q. And if it got crooked on the side where you were yon could straighten it there? A., Yes, sir. Q. But if it tangled up over across there on the other side you would have to go across over there? A. Yes, •sir; but when there were two men one was on each side, but when one man stepped off if it got crooked the other man would have to step across there. Q. You had crossed those chains before? A. Yes, sir. •Q. Because it would.get crooked there often? A. Yes, sir; whenever it would get crooked I would go over there and straighten it.”
    
      ■,'Salter & Hathorn and Welch & Welch, for appellant.
    
      Hall & Hall and J. W. Gassedy, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

(After stating the facts as above). The negligence with which appellant is charged is that it failed to furnish appellee .with a safe place in which to work, but it seems clear from the evidence that there is no sort of merit in this contention. Appellee’s injury resulted, not because he was furnished with an unsafe place in which to work, but for the reason that he placed himself in a dangerous position, not called for hy his work, in order to discharge a duty incumbent not upon him, hut upon a fellow employee. Moreover, the sheet iron was not intended to be used by appellant’s employees as a passageway across the lumber run, but, on the contrary, their duties required that they should keep off of it, so that it might serve the purpose for which it was intended; that is, to facilitate the passage of the lumber from the planing machines across the run. The ■peremptory instruction requested by appellant should have beeii given. Reversed, and judgment here for appellant.

Reversed.

HoldeN, J.

(dissenting). I differ with the majority on the one decisive question in this case, and that is, whether or not the testimony shows that the .master failed to furnish the servant with a reasonably safe place in which to work, or whether or not the evidence was, at least, sufficient to justify the court- in submitting this question to the jury. The' appellee was injured while performing the duties of his employment. It is true .that, at the time he was injured, he was serving in the place of another employee who had stepped aside, but the record shows that it was his duty to do this, and was employed for that purpose. His employment required him to handle the lumber on the moving chains, so that it would not become blocked and impede or stop the operation of the planing machines and chains.- In order to do this it was necessary, and within the purpose of his employment, for him to walk across and over the chains and runway to straighten out the lumber which Lad become blocked on tbe opposite side. While doing this, on the occasion in question, he noticed that the lumber was becoming blocked on the chains on the other side from which he had come, and he started back across to straighten it out, and, while crossing over, inad'vertently stepped on the slippery sheet iron — which the testimony shows was as slippery as ice — and slipped and fell on the chains and was injured. That this slippery sheet iron was dangerous for a person to step ■on is conceded by the record. It is also true that if the sheet iron had been guarded it would have been useless .for the purpose it was placed upon the floor: But the record also shows that the foreman of the appellant testified, in effect, that it was unnecessary to have this .sheet iron on the floor at all, as the chains were “turtle hack” in shape, and the lumber would pass over them without the aid of the sheet iron. The sheet iron had been worn to its dangerous, slippery condition by many .years of use there on the floor; and its danger to employees working near and around it was known to the master.' It is very evident that an employee working near it, as the appellee was, in the course of his duties, would be liable, at an unguarded moment, when his mind was engaged with his work, or in a moment of forgetfulness of its presence, to step upon it, even though he knew it was there, and that it was a dangerous place on which to step. This being true, it appears to me that, at most, the appellee could be charged only with ■contributory negligence in this case, which, of course, is not a bar to recovery. With the assumption of risk doctrine out of it, and contributory negligence being no bar to recovery, the question of negligence of the .master, I think, was properly submitted to the jury by the lower court.

It is pertinent to inquire, What is a reasonably safe ■place in which to work? What is a reasonably safe place ■depends entirely upon the facts in each particular case, and is a question of fact that should he submitted to the decision of a jury, unless the court can safely say from the bench that the proof shows manifestly and conclusively that the place furnished by the master to the servant in which to work is, or is not, reasonably safe.

Under the facts and circumstances of this case, I think the circuit judge was eminently correct in submitting the question to the jury as to whether or not, taking into consideration all the conditions, circumstances, character, and nature of the work of the servant, and the nature and location of the dangerous instrumentality which caused the injury, the master was negligent in failing to furnish the servant a reasonably safe place in which to work. It seems to me that the jury, ■composed of laymen taken from all walks of life, and who are familiar with ordinary human affairs of everyday life, would be the proper judges as to whether, under the particular facts and circumstances of the case, the place furnished by the master in this case was a reasonably safe place for the servant to work in. To say the least of it, it was a close question on the facts, and the judge could not say, as a matter of law, that the master was'free of negligence.

When the opinion of the-majority and appellee’s testimony are read carefully and digested, it becomes obvious that the appellee is deprived of his recovery in this case merely because he was guilty of contributory negligence in stepping on the slippery sheet iron. This is wrong. The opinion is erroneous in two particulars (I quote), viz.:

“Appellee’s injury resulted not because he was furnished with an unsafe place in which to work, but for the reason that he placed himself in a dangerous position not called for by his work in order to discharge a 'duty incumbent not upon him, but upon a fellow employee. ’ ’

The' injury received by the appellee was certainly caused by the unsafe place in which he was required to work. If the dangerous, slippery sheet had not been on the floor at the place around and about which the appellee was required to work, the injury would not have occurred. And whether or not it was a reasonably safe place must be judged by all the facts and eiroflm-stánces, together with the nature of the work appellee-was required to do, and also the deceptive appearance of the slippery sheet iron and the location of it on the floor, at a place where he would be liable to step unon it in the hurry necessary in performing the work that he was required there to perform. For that reason it became a question of fact that was properly submitted to the jury to determine whether the place was reasonably safe in which to work. The statement in the opinion that “appellee placed himself in a dangerous position not called for by his work” is not borne out by this record. The testimony shows that he was relieving and doing the work of one of the absent employees when called upon by necessity to do so at the time he was injured, which it was his duty to do, and was customary for him to do. This employment necessitated his crossing over, near, and around this dangerous slippery sheet iron, which he might inadvertently step upon at an unguarded moment while in the discharge of his duties.

Of course, “the sheet iron was not intended to be-used by appellant’s employees as a passageway across the lumber run,” yet it was put upon the floor at a place where the appellee, in the course of his duties, in crossing from one side of the runway to the other, would be liable to step on it, in a moment of forgetfulness, or when his mind was engaged with his work and he had no time in which to think, or else be compelled to walk around and out of the way in order to properly perform his duties in preventing the lumber from becoming blocked; which duty, if he had failed to perform, would have caused his discharge, for the reason that his employment required him to act hastily and promptly when necessary in order to keep the runway chain going in the proper manner.

The location of the dangerous instrumentality here, and the character and nature of the service required of the appellee, has much to do with determining whether the place was reasonably safe. If I concede that the sheet iron was not in a defective condition, still I think that the place was not reasonably safe on account of the location of the sheet iron on the floor, at a place where the servant was required to work around and over it. A place in which a dozen circular saws are running might he a reasonably safe place for a servant to work in, if the saws • are reasonably and properly placed. But an unguarded running saw, slightly protruding in and above the floor, around and over which a servant would have to walk in performing the duties of his employment, might not be a reasonably safe place in which to -work, although it was necessary for the saw to be where it was, and it was not defective, and would be useless if guarded. Therefore a reasonably safe place to work in depends upon the facts showing the circumstances and conditions, character of the work, and nature of the duties required of the servant.

In this case the sheet iron was not slippery when it was first put down, but years of wear had made it as slick as ice. Its danger to persons stepping upon it was known to the master. It appears from the record that some of the employees working at similar machines, where sheet iron was placed upon the floor, wore rubber heels as a protection against slipping on these slick sheets. The employer here knew of this fact and understood that the kind of work required of appellee was the same as required of the other employees working at other machines under similar circumstances.. The master also knew that the servant was liable to step on the slippery sheet while doing the kind of work that he placed him there to do, as the sheet was lpcated at a place around and over which appellee had to perform his work. It was as dangerous to step on this slip.pery sheet iron as it would have been to have stepped into a hole in the floor located at the same place. And' certainly the appellee would not be denied recovery had his injury been received on account of stepping in a hole or trap at the place where this slippery sheet was located on the floor. In Thompson on Negligence,, vol. 4, section 3888, it is said:

“Duty of Master to Prevent or Guard Mantraps,. Trapdoors, and Other Hidden Dangers on Such Premises. — This duty of the master extends to preventing the premises ■ whereupon he% requires the servant to work,, from containing dangerous pitfalls, obstructions, or other mantraps, into which his servant is liable, un-guardedly, to fall while his mind is absorbed in the duties of his employment.”

When the facts of this case are carefully considered and the long-established rules of law with reference to the master furnishing the servant a reasonably safe place in which to work are applied, I have no serious doubt that the learned circuit judge was correct in submitting this case to the jury in the lower court. Prom the nature of the employment the appellee was compelled to work around and over a dangerous instrumentality, nearly in his pathway, and he was liable to step on it at an unguarded moment, while in the performance of the very duties of his employment, and thereby become injured. The jury, and not the court, were the sole judges of the facts, taking all the conditions, circumstances, and nature of employment into consideration, as to whether or not' the master here was guilty of negli--gence in failing to furnish the servant a reasonably safe place in which to perform his duties.

The appellee is an aged man with’ a family, and was-permanently injured. The recovery below is to be set aside and annulled and his action ended by the majority opinion of this court. I cannot concur in the view of the' majority, and as the principle of law involved is important for the future, and- as I do not think that, under the law, the appellee should be deprived of his recovery,. I have written rather at length.

Ethbidge, J., concurs in this dissenting opinion.  