Farmer v. Cumberland Telephone & Telegraph Company

Decision Date03 July 1905
Citation86 Miss. 55,38 So. 775
PartiesJAMES L. FARMER v. CUMBERLAND TELEPHONE & TELEGRAPH COMPANY
CourtMississippi Supreme Court

April 1905

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Farmer the appellant, was plaintiff, and the telephone company, the appellee, defendant in the court below. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

The evidence for plaintiff was, in substance, as follows Plaintiff was employed by defendant at Meridian as "trouble man" on its lines, and on the morning of June 4, 1904, he was d plying a horse furnished him by defendant, and was going down a hill, when one of the traces came loose and dropped down, and the horse began to run and kick, kicked plaintiff, and broke his knee cap, and threw him out of the wagon. Plaintiff testified that he had worked for defendant as lineman and as trouble man for several months and frequently drove other horses owned by defendant, and had driven this one several times, but knew nothing of the vicious character of the horse before the accident. It was shown that one Peary was the manager of the defendant company. One Henson testified that he knew the habits of the horse; that he had worked for defendant, and had driven the horse; that it would run away every time it got a chance, and "would kick the harness off her ;" did so with him several times; liked to have killed him on the street one day; that he asked Peavy several times why he did not get another horse;that Peary was afraid of her, and had refused several times to ride behind her, and on one occasion walked several miles rather than ride behind her. Charles Patton testified that he knew the character and disposition of the horse; that she was blind, and vicious; would run away and kick up; had known the horse for two years; that Peavy told witness to get rid of the horse if he could; to swap her off if he could get anybody to swap; and to give her away, nearly, before she hurt somebody.

Reversed and remanded.

Ethridge & McBeath, for appellant.

Unless, from all the testimony, the court would not permit a verdict to stand, the court was in error in granting the instruction. Whitney v. Cook, 53 Miss. 551; Railroad Co. v. Boehms, 70 Miss. 11. Before the court would be warranted in giving the instruction here given, it must have found all the facts against appellee--the fact that the mare was a reasonably safe one, and that the appellee was not responsible through negligence by its agent or otherwise; in other words, that the trace coming loose and touching the mare was of such a nature as to cause any reasonably safe animal, under like circumstances, to have run away and kicked. The court must have reached this conclusion. We think this was an invasion of the province of the jury; that this question was for the jury to say whether a reasonably safe animal, under like circumstances, would have acted as this known dangerous animal did under the circumstances shown by the proof. If we are permitted to take personal experience, we would suggest that no reasonably sagfe animal would have run away and kicked like this mare did under like circumstances. Jackson and Burnett both say the appellant was doing all he could stop the mare, both with the lines and by persuasion, and there was nothing to cause her to start to running and kicking except the touch of the trace as is dropped.

This court in the case of Railroad v. Doyle, 60 Miss. 977, says: "It is only in cases free from doubt that the court will withdraw a case from the jury." Again, in the case of Bernheim v. Dibrell, 66 Miss. 199, the court says: "Peremptory instruction to find a certain way is improper unless the court, on the evidence, would set aside a contrary verdict." Again in the case of Nesbitt v. Greenville, 69 Miss. 22, and Railroad Co. v. Lowe, the court says: "Where the plaintiff's want of care is relied upon as a defense, unless the evidence of contributory negligence is so plain and convincing as to show that he is debarred thereby of recovery, it is error to give a peremptory instruction for defendant."

Harris, Powell & Harris, for appellee.

Under the facts as testified to by the plaintiff himself, if one wished to know the character of this particular horse, who better than the plaintiff was in a position to know her qualities, perculiarities, and characteristics? having her under his control, seeing her daily, hitching her up and driving her during a period of over fifteen months.

Surely he...

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21 cases
  • Hughes v. Star Homes, Inc.
    • United States
    • United States State Supreme Court of Mississippi
    • 16 Enero 1980
    ...of the trial judge. Whitney v. Cook, 53 Miss. 551; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Farmer v. Cumberland Telephone & Telegraph Co., 86 Miss. 55, 38 So. 775. (172 Miss. at 122, 159 So. at To the same effect are the cases of Mercy Regional Medical Center v. Doiron, 348 So.2d 243 (......
  • Magers v. Okolona, Houston & Calhoun City R. Co
    • United States
    • United States State Supreme Court of Mississippi
    • 20 Enero 1936
    ...... Calhoun City Railroad Company. From an adverse judgment, the. plaintiff appeals. ... . . Telephone. Co. v. Woodham, 99 Miss. 318, 54 So. 890; Keith v. Y. & ... maintain the issue. . . Farmer. v. Cumberland Tel. Co., 86 Miss. 55, 38 So. 733. . . ......
  • E. L. Bruce Co. v. Brogan
    • United States
    • United States State Supreme Court of Mississippi
    • 24 Febrero 1936
    ...... Russell Brogan against E. L. Bruce Company and another. From. a judgment for plaintiff, defendants ... dangerous and vicious. . . Farmer. v. Cumberland Tel. & Tel. Co., 38 So. 775. . . ......
  • Central Lumber Co. v. Porter
    • United States
    • United States State Supreme Court of Mississippi
    • 20 Abril 1925
    ...... by D. T. Porter against the Central Lumber Company. From. judgment for plaintiff, defendant appeals. Affirmed ... animal the master is liable. . . In. Farmer v. Cumberland Tel. & Tel. Co., 86. Miss. 55, 38 So. 775, ......
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