Cornish v. McCoy
| Decision Date | 09 January 1956 |
| Docket Number | No. 39834,39834 |
| Citation | 226 Miss. 366,84 So.2d 391 |
| Parties | W. H. CORNISH, d/b/a Cornish Lumber Company, v. Floyd McCOY. |
| Court | Mississippi Supreme Court |
Snow & Covington, Lyle V. Corey, Meridian, for appellant.
Nate S. Williamson, Lester F. Williamson, Donald Williamson, Meridian Morse & Morse, Poplarville, for appellee.
The appellee Floyd McCoy, as plaintiff, recovered a judgment in the Circuit Court of Lauderdale County against the appellant, W. H. Cornish, doing business as Cornish Lumber Company, defendant in the court below, in an action for damages for the negligent injury and wrongful death of the appellee's son, Frank McCoy, an employee of the appellant; and from the judgment the appellant prosecutes this appeal.
The record shows that the deceased, Frank McCoy, was burned to death on October 29, 1952, when a lumber truck in which he was riding and which was owned by the appellant and was being operated by another employee of the appellant caught fire near Lumberton, in Pearl River County, while the decedent and the driver of the truck were on their was to New Orleans for a load of lumber, which they were to haul back to the appellant's lumber yard in Lauderdale County. The decedent was an unmarried minor, 20 years of age, at the time of his injury and death. He had been working for the appellant since he was 15 years of age. He was a member of a large family, which consisted of the father and mother and nine children. The declaration was filed by the father, as plaintiff, in his own behalf and for the use and benefit of the mother and the minor brothers and sisters of the decedent.
The declaration alleged that the defendant had failed to use reasonable care to furnish the deceased, Frank McCoy, a reasonably safe truck in which to work; that the truck was unsafe because of the fact that the crank case leaked grease and oil and the gasoline tank leaked gasoline; that the truck had previously caught fire, and the defendant had knowledge of that fact; and that the defendant had negligently failed to have a fire extinguisher carried on the truck as required by the statute.
The defendant's answer consisted of a general denial of the allegations of negligence contained in the declaration and an averment that the accident was due solely to the negligence of the deceased and his fellow-employee.
The plaintiff's evidence consisted mainly of the testimony of Willie McCaleb, who was driving the truck the day that Frank McCoy was burned to death. The truck was a 1951 or 1952 Chevrolet 2-ton truck, with a flat tandem trailer. The truck had a saddle tank that went all the way across the end of the truck. McCaleb testified that he filled the tank with gasoline during the early part of the night before he left Marion. Mr. Cornish and Frank McCoy were standing by when the tank was filled. The gas line had been taped up; it leaked a little, but it was not running. The hand brake drum, which later caught fire, was about two feet from the leaking gas line. There were holes in the gas tank where screws were screwed into the tank. Some of the screws were missing. Some of the gas 'slushed out', as the truck was being driven down the highway. 'It sloshed from the gauge on the saddle tank and blew through the back window', which had a broken glass. McCaleb stated that the truck had caught on fire about three weeks before, while he was making a return trip from Wetumpka, Alabama; and he had told Mr. Cornish about that. He had also told Mr. Cornish before he left on the trip to New Orleans that the transmission was leaking.
McCaleb stated that he and McCoy left Marion about midnight, and when they were just outside the City of Lumberton McCoy told him that the truck was on fire. He pulled over on the highway shoulder at a 45 degree angle and stopped, and he and McCoy got out. He picked up a hand full of dirt and threw it on the fire, and there was an immediate explosion. The dirt was wet with gasoline that had run out of the tank, but he did not know that when he picked up the dirt and threw it on the fire. McCoy was on his knees by the side of the truck; his clothes were saturated with gasoline; and when the explosion occurred his clothes caught fire. McCoy started running, and 'he never quit running until he burn up his hide.' An ambulance and a fire truck arrived at the scene of the fire about 30 minutes later, and McCoy was carried to the hospital at Poplarville. The doctor testified that the burns that he had received were second and third degree burns involving 90 per cent of the surface area of his body and he died at 9:30 that evening. McCaleb stated that there was no fire extinguisher on the truck. On cross-examination McCaleb denied that he and Frank McCoy had stopped and pulled off the road and made a fire by the side of the truck; and the denied that a through truck passed them while they were parked on the highway.
Several witnesses testified for the defendant concerning repairs that had been made on the truck only a short time before the fire. Cornish himself testified that he had tightened the screws on the gas tank and had checked the gas line the evening before the truck left on the trip to New Orleans, and the truck was in good mechanical condition when it left Marion. If there were any gas leaks, he did not see them. Cornish stated that McCaleb did not tell him that he had had a fire on the truck prior to the time he undertook to make the trip to New Orleans.
Two other witnesses were called to testify for the defendant. Joseph Ray Forte, a produce dealer of Petal, Mississippi, and a colored helper who was riding with him in his truck, testified that they passed a Chevrolet truck parked on the shoulder of the highway near Lumberton during the early morning of October 29, 1952. Forte stated that he was traveling at a rate of speed of about 40 miles per hour when he passed the parked truck, and he did not stop. He said that it was not quite daylight, and he could see a fire. 'It looked like a small fire blazed up about a foot and a half,' 10 or 15 feet from the trailer. He saw one man standing right near the fire. It looked like he was backed up to the fire to warm. The trailer was not quite off the highway. On cross-examination Forte stated that he learned about 3:30 that afternoon that a Negro had burned to death on the highway. He admitted that he did not tell any highway patrolman or any public officer that he had seen the accident down there during the early morning.
D. K. Bevins, Jr., the colored boy who was traveling with Forte, testified that he saw the Chevrolet truck and trailer parked on the highway. There was a small fire, which seemed to be on the ground, and it looked like there was a man standing beside the truck. On cross-examination Bevins stated that it was about 5:00 or 5:30 o'clock in the morning when he and Mr. Forte passed the truck and trailer, and he could not be sure whether the fire was on the truck or just off the truck.
The jury after hearing the evidence returned a verdict for the plaintiff for the sum of $15,000.
The appellant's attorneys argue several points as grounds for reversal on this appeal. The first three points argued relate to errors in the instructions.
The court granted to the plaintiff three instructions relating to the duty of the defendant to provide and have carried on the truck a fire extinguisher, as required by Section 8256, Code of 1942. The appellant does not claim that the instructions complained of were erroneous in any material particulars. But it is argued that the three instructions tended to emphasize unduly in the minds of the jurors the importance of a strict observance of the statutory requirement that such fire extinguisher be provided and be carried on the truck, and since there was no proof in the record to show that the lack of a fire extinguisher added to the plaintiff's damages in any way the lower court should not have granted the three instructions. But we think there was no error in the action of the court in granting the three instructions which set forth the duty of the defendant to see that the truck was properly equipped with a fire extinguisher. The statutory requirement that a truck be equipped with a fire extinguisher which shall be kept ready for use at any time, was intended to provide a safeguard against the tragic...
To continue reading
Request your trial