* Corpus Juris-Cyc. References: Master and Servant, 39CJ, p. 289, n. 43; p. 290, n. 45, 46; p. 313, n. 21; p. 344, n. 34; p. 435, n. 4; p. 1155, n. 14; p. 1220, n. 71; Trial, 38 Cyc., p. 1618, n. 36; Liability of master for injury to servant which might, have been foreseen and expected, see note in 41 L.R.A., 56, 18 R.C.L., p. 588. The appellee, Theo Samuels, brought this action in the circuit court of the First district of Panola county against appellant, Peter Veney, to recover damages for a personal injury suffered by appellee through the alleged fault of appellant. There was a verdict and judgment for appellee, from which the appellant prosecutes this appeal.
Appellant requested a directed verdict, which was refused by the trial court. That action of the court and the giving of instruction No. 1 for appellee are the grounds for reversal relied on by appellant.
The following is deemed a sufficient statement of the controlling facts in the case to develop the question whether or not appellant was entitled to a directed verdict upon the ground that the testimony did not tend to establish appellee's case:
Appellant was a road contractor engaged in surfacing with gravel a link in Panola county of the Jeff Davis highway. He employed in the hauling and distribution of the gravel something like forty automobile trucks and a large number of employees. Gravel was hauled from a nearby gravel pit. Each truck loaded with gravel would back in on the road to a point near where the last gravel had been dumped. The trucks were so *Page 481 equipped that when the gravel was ready to be dumped the bed of the truck was released in front, the front end going upward and the rear end going downward, resulting in the gravel being dumped on the ground. At the time of his injury appellee was engaged in dumping a load of gravel. Appellee and a fellow servant with their hands on the rear end of the truck bed were bearing down thereon with all their weight, while two other employees of appellant were pushing the front end of the truck bed upward. When the rear of the bed struck the ground, instead of the rear gate to the bed opening as it should have done to let the gravel out, the latch thereto which protruded below the bed of the truck dug into the ground, thereby preventing the gate opening. Between the ends of the rear gate and the side walls of the truck there was a play of something like half an inch. The appellee in bearing the rear end of the truck down to empty it caught the thumb of his right hand in one of these openings. The failure of the rear gate to open on account of the latch thereto being caught in the ground caused the ends of the rear gate and the side walls of the truck to come together on appellee's thumb while so situated. Before appellee could extract his thumb, the truck was started, pulling the end of his thumb off at the first joint.
One ground of recovery set out in appellee's declaration is that the truck was not a reasonably safe instrumentality for the purpose for which it was intended, the result being the injury complained of.
Appellee's testimony tended to show that the fact that the latch to the rear gate of the truck protruded below the truck bed causing the latch in the process of emptying to dig into the ground and become fastened, thereby preventing the dumping of the gravel, made the truck unsafe for the employees engaged in emptying it, and that this condition of the truck was brought to the attention of the appellant probably more than once. The evidence appears without conflict that the injury to appellee's thumb would not have occurred except for the *Page 482 fact that the latch to the rear gate protruded below the bed of the truck.
The appellant argues, however, that conceding that the truck was an unsafe instrumentality in that respect resulting in appellee's injury, nevertheless it was an injury for which appellant is not liable because it cannot be said from the evidence that appellant as a reasonable person should have anticipated that some injury might occur to an employee on account of such defective condition of the bed of the truck. The law is, as contended by appellant, that a master is not liable for every injury occurring to his servant on account of a defective instrumentality put into his servant's hands with which to work, but is liable only when he should have reasonably anticipated that such an instrumentality would result in some injury to his servant. Appellant argues that, whatever defect there was in the truck involved in this case, it was such as that the master could not have reasonably anticipated any injury would result therefrom to his servant. We are of opinion, however, that this was a question for the jury.
Appellant is presumed to have been skilled in the business in which he was engaged. He knew how the trucks were emptied. As to this particular truck he knew that it took servants pushing up the bed at the front and two servants bearing down with all their weight at each corner of the bed at the rear in order to empty the truck. And he knew, or should have known, that in thus emptying the truck the servants at the rear might have one or more of their fingers in or near the openings between the ends of the rear gate and the sides of the truck, and that the failure of the rear gate to open, on account of the latch thereto becoming fastened in the ground, might cause the sides of the bed of the truck to press with great force upon the ends of the rear gate, and thus cause the character of injury which appellee received. Under the law it was not necessary that appellant should have anticipated the particular injury that resulted from the condition of the truck, but only *Page 483 that an injury of some character might result therefrom to a servant. It is often a very close question of fact as to whether a master shall be held liable to his servant for an injury received on account of defective ways, means, or appliances. We think this is that character of case, but we are of ouinion that under the evidence the jury could have reasonably found, as they did, that the defect in the bed of this truck was such that appellant by reasonable forethought should have anticipated that some injury might result therefrom to his servants. The trial court, therefore, committed no error in refusing to direct a verdict for appellant.
The other ground of recovery set up in appellee's declaration is that one Smith was appellant's foreman in charge of the dumping of the gravel on the road; that the foreman, while appellee's thumb was fastened in the truck, negligently ordered appellant's driver to move ahead, which the driver did, such movement resulting in the end of appellee's thumb being pulled off; that the action of the foreman in so ordering the driver to move forward was negligent because the foreman knew, or should have known, of appellee's perilous situation; that Smith, the foreman, in superintending the dumping of the gravel, was acting for appellant and in his stead; and that therefore his negligence was the negligence of the master and not that of a fellow servant.
By instruction No. 1 given for appellee, the court told the jury that it was their duty to find for appellee if the foreman, Smith, gave the order to the truck driver to move forward when he knew or should have known appellee's situation of peril.
Even if it be true, as contended by appellee, that Smith was not appellee's fellow servant, but was acting for appellant as principal, this instruction should not have been given because there was no evidence upon which to found it. There was no substantial testimony whatever tending to show that Smith knew that appellee's thumb had been caught or that he could have known it by reasonable diligence. The whole occurrence took place in *Page 484 a very minute period of time. There is not a fact or circumstance in evidence that goes to charge Smith as foreman with knowledge of appellee's situation of peril or with any neglect of duty with reference thereto. Therefore this instruction was erroneous and, we think, calculated to mislead the jury. In considering the case the jury might have based its verdict alone on the negligence of foreman Smith.
We do not decide the question whether Smith was acting as principal or fellow servant with appellee, because we do not come to it.
Reversed and remanded.