Lancaster v. Lancaster , 213 Miss. 536 ( 1952 )

Alexander, J.

This is an appeal from a judgment for personal injuries suffered by appellee. The essential facts are as follows: J. B. Michael & Company, Inc., hereafter referred to as Michael, being under contract with the State Highway Commission to construct a link of a public highway in Monroe County, sublet the contract for the watering of the sodding placed upon the shoulders of the highway to Bob Lancaster who employed his son, the appellee, to perform this work. Such work was undertaken by the use of a sprinkling machine consisting of a water tank mounted upon a specially designed motor truck whence the water was pumped by a gasoline motor through a hose with a sprinkler head. It is asserted that an efficient operation of the device required that it be operated near the driver’s left margin of the paved highway so as thoroughly to spread water upon the adjacent shoulder. To this end the truck proceeded in an extra low gear and at a retarded speed. Such was the manner of operation at the time of the injury. While undertaking this work at night in alleged conformity with the requirements of the State Highway Commission, plaintiff was demonstrating to a fellow worker the proper manner of using the hose. The truck was being driven slowly eastward by a third employee.

A third party, Mrs. Majors, had entered upon the link of road, and after proceeding east to a barricade, turned about and proceeded west in retracing her course. She was accompanied by her husband. Upon approaching the watering truck, which was equipped with two headlights, a row of lights along the top of the driver’s cab, clearance lights along its sides and two lighted flares, Mrs. Majors undertook to pass the truck on the north side by driving-over onto the shoulder. Plaintiff had his back turned, and the noise created by the motors and pump prevented his hearing the approach. Mrs. Majors testified that she had been traveling at about twenty miles an hour but slowed down to about fifteen miles as she reached the truck. "Witnesses for appellee stated that the car ££zoomed by”. While so undertaking to pass the truck her car struck the employee, Archie Lancaster, knocking him a considerable distance down the embankment and inflicting serious crippling injuries. At the moment appellee was, as stated above, showing a helper how to use the sprinkler. Appellee did not see the Majors car approaching. After striking appellee the car traveled, before being brought to a stop, • a distance variously estimated up to 145 feet.

Suit was brought against Mr. and Mrs. Majors, Michael and Lancaster. Nonsuit was taken as to Mr. Majors. There was a verdict and judgment in favor of Mrs. Majors and against Michael and Bob Lancaster. Appeal is taken by the last two defendants. There is no cross-appeal and the verdict acquitting Mrs. Majors is not here involved.

Before considering the case upon its merits we must notice an assigned error involving an alleged disclosure of liability insurance coverage. During a cross-examination of the brother of the plaintiff by counsel for Mrs. Majors, the following colloquy ensued:

“Q. And you say the first thing you knew about the car was when the car came by the water truck and your truck, struck your brother and then went a hundred thirty feet down the shoulder? A. The first I saw it was going to hit my brother.

<£Q. And it ran past you 145 feet down there?' A. That’s what I said.

“Q1. When did you measure that? A. I didn’t measure it.

££Q. You weren’t interested in how far the car went, you were interested in your brother. A. Yes, but next day the Insurance Company measured—

££Q. Who measured it? A. I don’t know.

££Q. You were just guessing then? A. No, wasn’t guessing, well it was in the neighborhood of 100 to 145 feet.

“Q. You didn’t measure it yourself that night or the next day? A. I was there when they measured it.

“Q Who measured it? A. Insurance adjustors.

“Q: Who was he? A. I don’t recall.

“Q. What was he doing out there measuring?

“Mr. Eager: We object to that.

“The Court: Sustained.”

The considerations tending to support this assignment include the fact that there were three defendants who as ■to each other were adversary parties; that the intimation as to the existence of liability insurance is poisonous to an otherwise impartial mind regardless of whether such coverage exists as a fact or how the suggestion may arise; and that the disclosure was emphasized by repetition. On the other hand, it is contended that the statement by the witness was voluntary and not responsive to the inquiry; that it was elicited by a defendant who was engaged in a common defensive cause with appellants; that it would be unreasonable to allow a defendant, or one of several, to inject such prejudice whereby a plaintiff’s case may be undermined without contributing fault; that the objection and motion for a mistrial were not promptly made; and that, even if the statement conveyed the idea that an insurance company was interested, it is not to be assumed that such coverage protected any particular defendant.

There are several considerations which rendered this testimony hazardous. By calling upon the witness to repeat the identity of the party measuring distances, there was supplied an emphasis which in the initial voluntary statement was lacking. The jury, by acquitting the defendant whose counsel elicited the answers, could well have considered that she would not thus encourage a verdict against her and that there remained a subtle intimation that she was not so protected. Such is the reasoning of the appellants onto whose shoulders the entire responsibility was allegedly shifted, since the jury, for reasons of their own, acquitted the defendant whose act caused the plaintiff grievous injury.

Such references when brought out by plaintiff’s counsel are almost invariably ground for reversal. It is impossible to catalog all similar references and assign each to a definite category. The rule may not be uniformly packaged for general use under any designated label. Each case presents its own problem. Both the facts and the factors are unique. After repeated analysis of the situation presented here we have concluded that this error is not reversible. Compare Petermann v. Gary, 210 Miss. 438, 49 So. (2d) 828.

Point is made that this action by the son, Archie Lancaster, a minor, cannot be maintained against his father. Appellants cite Hewlett v. George, 68 Miss. 703, 9 So. 885, 13 L.R.A. 682. This case recognizes the rule of incapacity as based upon maintenance of the integrity and peace of the family relationship, but concedes that full emancipation undermines the rule where such reason therefor fails. In the instant case the son was twenty years of age and became of age ten days ofter his injury. He was married and lived apart from his father. At the time of the accident a child was expected, which was born thereafter. Under these circumstances, there was a complete emancipation and the action was therefore maintainable. It is immaterial that his father assumed gratuitously a substantial amount of medical and hospital expenses. The authorities on this point are set out in brief for appellee. Compare also Deposit Guaranty Bank & Trust Co., Gdn. v. Nelson, Miss., 54 So. (2d) 476.

We now examine the liability of Michael, which issue is presented by the refusal of the trial court to grant a requested peremptory instruction in its favor. This defendant was under contract with the State High- ■ way Commission to construct a link of highway in Monroe County. This work had been completed except for the watering of the sodding upon the shoulders and embankment. This work was sublet by Michael to Bob Lancaster. In view of the necessity for the completion of such detail, Michael had placed adequate warning signs at the entrance onto this link of road and at other proper points indicating that the road was still under construction and that there was danger in its use. It was supposedly closed to through traffic, but required to be left open to local traffic.

At the outset it should be pointed out that, regardless of the adequacy of warning signs, any absence or insufficiency thereof was wholly unrelated causally to the plaintiff’s injury. Mrs Majors' had seen the signs and was completely aware of the situation. There was no defect alleged or shown with respect to the work Michael was required to do. Although upon complaint of the subcontractor Michael had promised “to take care of traffic,” such promise is relevant more to reveal some necessity therefor than to charge it with a duty to forbid it altogether in the face of his contract to keep the road open at least to local traffic. So that as far as its duty to construct the highway as such is concerned there is no evidence of any breach thereof causally contributing to the appellee’s injury.

The only plausible theory under which Michael’s conduct could be left open as a factual issue is that there remained a duty to protect the servants of the independent contractor against unreasonable risks. It retained no control over the means and methods whereby Bob Lancaster was to prosecute his work. Indeed the subcontractor testified that Michael did not supervise or control him and that he was his own boss using his own methods. It is to be stressed that this case does not involve an injury caused to a third person. The exceptions to the complete responsibility of an independent contractor find no place here since the injury was suffered by a servant of the independent contractor. It has often been announced that even if the work is inherently dangerous, the contracted does not remain liable for injuries caused to a servant of an independent contractor by the negligence of the latter, and that snch servant is not a third person nnder the doctrine covering this relationship. Humble Oil & Refining Co. v. Bell, Tex. Civ. App., 180 S.W. (2d) 970; Bell v. Humble Oil & Refining Co., 142 Tex. 645, 181 S.W. (2d) 569; Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A (2d) 43; 57 C. J.S., Master and Servant, § 600. IVe do not, however, pronounce this principle as controlling here since we find that the work was not inherently dangerous. We base our conclusion upon the nonliability of Michael in respect to dangers or exposures, if any, under the sole control of the independent contractor. The injury was caused by no failure of any legal duty owed by Michael to the plaintiff. The peremptory instruction requested by Michael ought to have been given.

We are left then with the question whether the issue of negligence on the part of the independent contractor, Bob Lancaster, ought to have been submitted to the jury. Referring again to the fact that the injury was caused to the servant by a third person, we consult the authorities dealing with this situation.

The highway was used by motorists and such fact is borne out by the testimony and accentuated by the contractor’s complaints in regard thereto. He testified as follows:

“Q. Now, you said you had been on jobs where they allow traffic to go through while the workmen were working, you have known a lot of serious trouble coming from that too, haven’t you? A. I would think so, I have.

“Q. Haven’t you noticed a lot of accidents happening where traffic is coming through? A. Sure.

“Q. As an experienced man isn’t it awfully dangerous to have traffic coming through unregulated where there are men working — (Objection as a conclusion. Overruled by the Court.)

“Q. You knoAv, don’t you, Avhere they alloAv traffic to come through such traffic as Avas coming through this road, hasn’t it been your experience that contractors have had accidents and trouble where traffic is coming through where men are working? A. Yes.

“Q. That’s common, isn’t it? A. It’s very common, yes.”

And later the examination was continued:

‘ ‘ Q. But you do know there was constant traffic coming through? A. At the times I was there, yes.

“Q. And lots of speed? A. Some of them pretty speedy.”

The record shows that the method adopted required the watering truck to travel upon its left side of the highway near the north edge of the concrete so as to reach the sod with the sprinkler hose. As Mrs. Majors was returning westward she noticed the truck. It was on its right-hand side but crossed over to its left side during the period of her approach. AVhen she reached the truck it was on its left side of the highway and in the lane in which she was traveling. The circumstances under which the injury occurred have already been mentioned.

There was nothing mechanically wrong with the truck. Although Mrs. Majors testified that the lights of the truck were “jumping” or flickering, yet she saw the truck and undertook to avoid a collision, explaining her maneuver as follows:

‘ ‘ Q. Did you stop your car before you got to the truck ? A. Ño, I was trying to get out of the car’s way.

‘ ‘ Q. AYhy clidn’t you stop ?

“Mr. Eager: AYe object.

“The Court: Overruled.

“A. AYell, I didn’t want to be hit and I took to the’ right as far as I could which I had been taught was the way to drive a car. ’ ’

So far as Mrs. Majors is concerned, the lights upon the truck had served their function. The question whether she acted reasonably in electing to drive to her right upon the shoulder of the highway rather than to stop or to pass upon her left side has been resolved by the verdict of the jury in her favor. It evidently decided that she had acted reasonably. The crux of our inquiry is whether it was reasonably foreseeable that the method of work adopted by the contractor exposed his servant to an unreasonable risk of injury by third persons.

The general principles governing a master’s duty must be passed over so that the issue may be confined to the reasonable foreseeability that some injury might be caused under these particular conditions.

An employer is bound to take into account the reasonable probability that injury may be caused to the employee by a third person. "We restrict our survey to such cases.

In Gulf Refining Co. v. Ferrell, 165 Miss. 296, 297, 147 So. 476, 478, an employee was set at the task of painting signs upon the surface of a concrete street adjoining his regular place of work. While so engaged he was struck and injured by a passing motorist. In affirming a judgment of liability against the employer it was pointed out that, while it was unnecessary to adjudge whether a street devoted to motor vehicle traffic is of itself a dangerous place, it could be held to be unreasonably unsafe when the employee is required to concentrate his attention upon the assigned task. We there stated: “The street, at the point where Fei’rell had been working, as stated, for about ten minutes, was not a reasonably safe place, he had a right to a warning from the master. It was necessary for him to do this work, and he was, in so doing it, blindfolded, as it were, upon a street devoted to traffic. He was not in a situation such as the purveyor of ice, the stenographer of the lawyer, or the street sweeper. He was not warned. There can be no question that this was not a safe place to work as he was situated.” See also Huddy, Encyc. Automobile Law, Sec. 106.

In Billups Petroleum Co. v. Entrekin, 209 Miss. 302, 46 So. (2d) 781, the employer had covered the drive-in area of its service station with loose gravel which, by the constant entering and leaving by motorists, had been cast upon the surface of the adjoining highway. This gravel if not removed was held to constitute a menace to motorists, one of whom skidded thereon, and his car, thus placed out of control, ran into a station employee then engaged in servicing an automobile. The act of the third person was held not to have been an independent intervening cause and the case was submitted to the jury upon the issue whether some injury was reasonably foreseeable as a probable consequence of permitting gravel to remain upon the highway. Cited in the opinion was United Novelty Co. v. Daniels, Miss., 42 So. (2d) 395, where an employee was assigned the duty of cleaning a coin-operated machine with gasoline. A rat, dislodged therefrom, sought refuge under an open gas burner which ignited gasoline fumes contained in the coat of the rodent which ran again to the machine and caused an explosion of such fumes. The case turned upon the issue whether some harm might have reasonably been foreseen from the method and circumstances of the work. While even the devotees of analogy would be reluctant to designate the flaming rodent asa“ third person”, it was at least a living agency wholly distinct from the operation itself. So also in Coast Ship Co. v. Yeager, 120 Miss. 152, 81 So. 797, the injury was caused by a third person who was at the same time an employee. Yet the plaintiff had been placed at work in a place where injury by another person was reasonably to be foreseen.

More to the point is Russell v. Williams, 168 Miss. 181, 150 So. 528, 151 So. 372. Here an employee was placed upon the running board of the defendant’s truck and was injured when run into by a third person. It was held to be a factual issue for the jury whether the employer should reasonably have foreseen that the driver would turn left without signalling and thus expose the employee to danger. It was not necessary to find that it was a reasonable anticipation that a third person would cause the injury. The point here controlling is that, included in the scope of reasonable prevision are the negligence of another and even an intervening cause.

We need not meet an implied challenge as to what measures should have been adopted to constitute full compliance with a duty to use reasonable care to furnish appellee with a reasonably safe place for, and methods of, doing the work. Certainly there was danger, for there was injury,

Moreover, the contractor disclosed his awareness of such danger. This, of course, is not enough to impose liability. There must be a legal duty violated. The jury found that the contractor had -not used reasonable care to protect his employee. Was it authorized to make such finding?

In the solution of this problem we must take into account the dilemma presented to Mrs. Majors by the course pursued by the contractor. The water truck had shifted from its right side to its left. She was confronted by the necessity of electing whether to use her left lane in defiance of an instinct inculcated by training and compelled by law in ordinary cases, or to risk the unusual procedure of passing to her extreme right entirely off the highway. As stated, she must have been found to have acted not unreasonably by the jury which perhaps unconsciously utilized the reasoning of Priestley v. Hays, 147 Miss. 843, 112 So. 788, wherein an emergency was held to justify a technical violation of the rules of the road.

Of a surety, absolute protection could have been furnished, although such a degree of care is beyond any legal duty owed to appellee. It is not for us to inquire as to what warnings or safeguards, if any, the contractor could or should have employed, or whether further safety measures or other methods would impose an unreasonable burden. For example, the jury may have found no reason why the hose of the watering tank could not have been placed on its right side or that other reasonably available safeguards could have been used.

In McLemore & McArthur v. Rogers, 169 Miss. 650, 152 So. 883, 884, a servant was put at a work requiring a constant attention and while so engaged, another servant negligently caused wet concrete to fall into the eyes of the former. We stated: “ * * * where the master places his servant at a place and in a character of work which exposes the servant to hazards against which the servant cannot by the use of due care, protect himself and at the same time do his work, the master must then take reasonable care to warn the servant or to erect guards, if either of these are reasonably practicable, and, if not, the master must so order and control the method of work as to obviate the danger, so far as reasonably practicable.”

In Alabama & V. R. Co. v. Graham, 171 Miss. 695, 157 So. 241, 242, plaintiff’s decedent was killed when an automobile in which he was riding ran through the guard rails and fell to the ground below. The driver was his wife. The facts, as stated in the opinion, are as follows: ‘ ‘ They were traversing the bridge which carried United States Highway No. 80 over the track of the appellants, and as she was driving down the eastern slope, or approach of the bridge, she came up behind a Chevrolet coupe proceeding in the same direction; she turned to the left for the purpose of passing this coupe, and, as she did so, she saw an automobile approaching from the east. She then attempted to cut back behind the coupe, and, as she did so, she struck the left side of the coupe, with the result that her sedan skidded or was thrown to the extreme left or north side of the bridge and was headed at an angle into the north wheel guard and guard rail. The sedan mounted the wheel guard and, after balancing for a perceptible time on the edge of the bridge, dropped to the ground below, about 22 feet.”

It was shown that the bridge or overpass and its guard rails were constructed in accordance with the plans and specifications of the State Highway Department. The declaration was based in part upon a negligent failure to maintain reasonably adequate guard rails. Despite a finding and an instruction that the driver was guilty of negligence, the issue of the negligence of the railroad was held to have properly been submitted to the jury, such negligence to be adjudged in the light of an expectation ■ of passing traffic and the reasonable sufficiency and safety of the guard rails, regardless of the fact that they were of an accepted standard of construction. It was not controlling that the injury came about as a result of a negligent act of another, even though it followed an unusual and complex combination of circumstances.

As said in Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 627, 199 So. 294, 1 So.(2d) 242, 245 : “Requisite care remains always that degree of care commensurate with appreciable danger appraised in terms of ordinary prudence and interpreted in the light of the attendant circumstances. Application of this principle leads to results which give play to such varying factors as time, place, and purpose. Although the expression and the basis of the rule remain fixed, its flexibility permits accommodation to each particular case. The area of factual doubt within which juries should be allowed to function is circumscribed within a circle of which care is the axis and reasonableness the radius. "Within this area reasonableness is to be adjudged by reasonable men, and their right to differ is commensurate with their duty to consult. Beyond this limit lies the field of substantive law. Here are found those issues as to which reasonable men should not be in disagreement. It is here that 'the court is not called upon to decide the issue of fact one way or the other, but it is called upon to decido whether there is an issue of fact under the law to go to the jury. ’ ’ ’

Plaintiff stated that when both motors were in operation, as was the case here, he could not hear, and from his position he could not see, an approaching car.

For us to say flatly that the master had used all reasonable means to guard the servant against reasonably foreseeable dangers, would result in an exercise of the jury’s function. The liability of Michael has been found to lie “beyond the limit” of tbe circle of jury debate because, by disclosing no duty owed to plaintiff in tbe circumstances, its liability lies in “tbe field of substantive law”. Such is not tbe case as regards tbe liability of the subcontractor. We have no authority to say judicially that the subcontractor had used reasonable measures under which the work could have been conducted with reasonable safety. It was not error to refuse the peremptory charge in his favor.

The other assignments are directed to the giving and refusing’ of certain instructions. We have examined each carefully, and when taken together they presented the controlling issues without reversible error. The instructions given on behalf of Mrs. Majors raise questions which are now moot in view of her acquittal. It was not error to refuse a charge that she was guilty of negligence and that, if, but for such negligence, the injury would not have occurred, the verdict should be for the other defendants.

For the considerations discussed, the judgment must be reversed as to J. B. Michael & Company, Inc., and judgment will be entered in its behalf. It is affirmed as to the liability and judgment against the eodefendant Bob Lancaster.

Reversed and judgment here as to J. B. Michael & Co., Inc., and affirmed as to Bob Lancaster.

Roberds, Lee, Kyle and Ethridge, JJ., concur.