Aponaug Mfg. Co. v. Carroll

• Decision Date: 24 October 1938
• Docket Number: 33362
• Court: Mississippi Supreme Court
• Parties: APONAUG MFG. Co. v. CARROLL

184 So. 63

183 Miss. 793

APONAUG MFG. Co. v. CARROLL

No. 33362

Supreme Court of Mississippi, Division B

October 24, 1938

Suggestion Of Error Overruled December 5, 1938.

(Division B.)

1 NEGLIGENCE.

Where it is shown that the accident whereby the injury was caused could not have happened except for the defective condition of the appliance complained of, the doctrine of res ipsa loquitur applies.

2 NEGLIGENCE.

Where the declaration charges specific acts of negligence, instead of charging negligence generally, the doctrine of res ipsa loquitur must be limited to creating a presumption in favor of the negligence charged in the declaration.

3. MASTER AND SERVANT.

In action by employee against employer for injury sustained from a falling beam in a cotton mill, where petition alleged accident was caused by chain being worn on pulley of block and tackle and other causes not known to employee but known and understood by employer, allegations did not limit charge of defective conditions to question whether chain and flanges of block had become worn, but employee was entitled to benefit of any defective condition in mechanism of hoist.

4 NEGLIGENCE.

Generally plaintiff is confined in his proof to those specific acts of negligence charged upon theory that defendant is entitled to be apprised as to ground of negligence relied upon for recovery, but rule does not require that plaintiff specify in what particular part defect is located in a complicated appliance; it being sufficient if allegation specifies defective appliance of which complaint is made.

5. MASTER AND SERVANT.

In action by employee against employer for injury sustained from a falling beam in cotton mill, where it appeared that beam had fallen to floor a week before, question of what would be a reasonable time to allow employer for making repairs was for jury.

6. APPEAL AND ERROR.

In action for injuries sustained from a falling beam, where employer's defense in trial court had been that no promise to repair had been made and that no repairs were needed, on appeal the Supreme Court would not consider contention by employer that a reasonable time following a previous accident should be allowed for making repairs.

7. MASTER AND SERVANT.

In action by employee against employer for injury sustained from falling beam in cotton mill, where it appeared that another hoist had been used on former occasions and that employer could have caused the beams to be moved by other means shown to be in use at similar mills, whether employer was negligent in requiring employee to continue the use of the particular appliance pending delay for an alleged promise to repair was for jury.

8. MASTER AND SERVANT.

In action by employee against employer for injury sustained from falling beam in cotton mill, where it was alleged that accident was caused by defective hoisting equipment, employee did not assume risk incident to operation of the equipment if employer was negligent in requiring its use (Code 1930, sec. 513).

9. EVIDENCE.

An X-ray technician who was not a physician or surgeon, and who had never taken courses in anatomy, but who had 15 years' experience in reading and interpreting X-ray pictures, was competent to testify that the pictures disclosed fractures of the vertebrae, although not competent to express an opinion as to what caused condition shown.

10. APPEAL AND ERROR.

Supreme Court will not substitute its own judgment for that of jury as regards amount of damages in personal injury cases, except where amount awarded clearly indicates jury was controlled by passion, prejudice, or corruption.

11. DAMAGES.

$5,000 was not excessive for injuries sustained by employee in cotton mill when heavy beam fell on his back.

HON. JULIAN P. ALEXANDER, Judge.

APPEAL from the circuit court of Yazoo county, HON. JULIAN P. ALEXANDER, Judge.

Action by Thompson Carroll against the Aponaug Manufacturing Company to recover for injury sustained while attempting to lower a large beam, suspended by a block and tackle, in the defendant's cotton mill. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, and D. E. & J. T. Crawley, of Kosciusko, for appellant.

Appellant was entitled to a peremptory instruction in that appellee entirely failed to sustain his burden of proof that the cause of the injury was the negligence of the appellant and failed to prove any cause of the injury and any defect in or unsafe condition of the apparatus whatsoever but merely proved an accident.

Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127; A. & V. Ry. v. White, 106 Miss. 141, 63 So. 345; Huff v. I. C. R. Co., 199 N.E. 116; I. C. R. R. Co. v. Jones, 16 So. 300; Schneider v. Pevely Dairy Co., 40 S.W.2d 647.

A master is not liable for the failure to remedy a latent, hidden defect which was undiscoverable with reasonable care. The burden of proof in this case was upon the plaintiff to prove some imperfection in the apparatus which should have been discovered by the defendant and remedied. The only conclusion from the entire absence of proof of any imperfection or defect by plaintiff is either that there was no such defect or that if in fact the apparatus was defective, the imperfection was hidden, latent and undiscoverable.

Appellant was entitled to a directed verdict for the reason that the evidence of appellee himself shows that defendant was not negligent in failing to exercise reasonable care in supplying reasonably safe apparatus, in that appellant did not have a reasonable, opportunity after acquiring knowledge of the alleged defect to remedy the same.

Magnolia Pet. Co. v. Stoddart, 83 S.W.2d 1047; Thompson v. Power Co., 73 S.E. 888; Rolling Stock Co. v. Weir, 11 So. 436; Hurst v. Railroad Co., 63 S.W. 695, 85 Am. St. Rep. 539; Indiana Union Traction Co. v. Long, 96 N.E. 604; Jennett v. Louisville & N. R. Co., 162 F. 392; 3 Labatt, pars. 1009, 1010 and 1011.

Mississippi authorities agree that where there is no negligence on the part of the master that then in spite of our statute, an employee assumes risks incidental to the employment since the master is only liable for negligence.

Eastman Gardiner Hardwood Co. v. Chatham, 151 So. 556, 168 Miss. 471; Anderson Tully Co. v. Goodin, 174 Miss. 162, 163 So. 536; Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Newell Contracting Co. v. Flynt, 161 So. 298, 743; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.

Appellant was entitled to an instructed verdict for the reason that appellee's own evidence showed that the alleged defect in the machinery, if it existed, which is denied, only furnished a condition making the injury possible and that the proximate cause of the injury was the subsequent independent act of the servant in voluntarily working without sufficient assistance without the knowledge of appellant.

Batson Hatten Lbr. Co. v. Thames, 114 So. 25, 147 Miss. 794; Cobb Bros. Const. Co. v. Campbell, 107 So. 283; Buckeye Cotton Oil Co. v. Saffold, 87 So. 893, 125 Miss. 407; Eastman Gardiner Hardwood Co. v. Chatham, 158 Miss. 471, 151 So. 556; Railroad Co. v. Daniels, 73 Miss. 258; Hardaway Contracting Co. v. Rivers, 180 So. 800.

Undisputedly, the proximate cause of the particular injury here complained of was not the negligence of the defendant, or, certainly, not the negligence sued for, and we respectfully submit that appellant was entitled to a directed verdict.

There is insufficient evidence to support a verdict of $ 5, 000 in that such a verdict can only be sustained upon the basis of a permanent and serious injury; a finding of such serious injury by the jury must be reversed in that there is insufficient evidence to sustain the same.

Beard v. Turritin, 173 Miss. 206, 161 So. 688.

We respectfully submit that under the following authorities, the testimony of Mr. Palmerlee, merely a raditechnician was inadmissible and that the verdict cannot be permitted to stand on the testimony of Dr. Anderson alone, admittedly not a radiologist or an expert, when in direct conflict with the positive statements of three expert radiologists.

Maloy's Legal Anatomy & Surgery, page 729; Wigmore's The Science of Judicial Proof (3 Ed.), 1937, pages 475, 477 and 478; Saas v. Hindmarsh, 184 N.Y.S. 467; Liles v. Hannah Pickett Mills, 150 S.E. 363.

The verdict of the jury is upon all questions upon which liability rests, clearly against the great weight of the evidence.

Barbee v. Reese, 60 Miss. 906; Beard v. Williams, 161 So. 750, 172 Miss. 880; Clark v. Moyse & Bros., 49 So. 721; Columbus, etc., R. Co. v. Buford, 116 So. 817, 150 Miss. 832; Fore v. I. C. R. R. Co., 160 So. 903, 172 Miss. 451; Justice v. State, 170 Miss. 96, 154 So. 265; McFadden v. Buckley, 53 So. 351, 98 Miss. 28; Mobile & O. R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Mobile & O. R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; Sims v. McIntyre, 8 S. & M. (16 Miss.) 324.

Barbour & Henry, of Yazoo City, for appellee.

The negligence alleged was overwhelmingly proven.

Appellee has not shown what might have caused his injury, but has shown, with no substantial contradiction, the only reason it could happen was the slipping and finally falling of the beam due to the worn and defective condition of the grooves, which was repeatedly brought to appellant's knowledge, and finally with a promise to repair. The proof brings the case clearly within the doctrine of res ipsa loquitur.

G. &amp M. Coast Tractor Co. v. Hicks, 116 Miss. 164; Waddle v. Sutherland, 156 Miss. 540; J. C. Penny Co. v. Evans, 172 Miss. 900; A. & V. By. Co. v. Groome, 52 So. 703, 97 Miss. 201; 2 Labatt,...