Graham v. Brummett

Decision Date06 June 1938
Docket Number33176
Citation181 So. 721,182 Miss. 580
CourtMississippi Supreme Court
PartiesGRAHAM v. BRUMMETT

Division A

Suggestion Of Error Overruled June 20, 1938.

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

Action by W. M. Brummett against Eugene Graham, etc., for personal injuries sustained by plaintiff as a servant of the defendant. From an adverse judgment, defendant appeals. Reversed and remanded.

Reversed and remanded.

Watkins & Eager, of Jackson, for appellant.

The lower court should have granted the peremptory instruction requested by appellant because: (1) The evidence wholly fails to show that any negligence of the appellant proximately contributed to appellee's injuries; (2) The undisputed evidence shows that appellee in attempting to descend from the scaffold chose an obviously dangerous route when there were at his disposal other obviously safer methods of descent.

LaBatt's Master & Servant, sec. 1249; 5 Thompson on Negligence, sec. 5372; Batson Hatten Lbr. Co. v. Thames, 114 So. 25, 147 Miss. 794; Williams Cooperage Co. v. Hedrick, 159 F. 680; Cobb Bros. v. Campbell, 170 So. 293; Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Overt Land & Lbr. Co. v. Adams, 69 So. 499, 109 Miss. 740; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 78 So. 776; Whatley v. Anderson-Tully Co., 12 F.2d 268; Brown v. Coley, 168 Miss. 778, 152 So. 61; Eastman-Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Martin v. Beck, 177 Miss. 303, 171 So. 14; Hardy v. Turner-Farber-Love Co., 101 So. 489; Truly v. North Lbr. Co., 83 Miss. 430, 36 So. 4; A. L. I., Restatement of the Law of Torts, sec. 500; American Linseed Co. v. Heins, 141 F. 45; Fritz v. Salt Lake Co., 56 P. 90.

The evidence upon which liability was based is insufficient to support a verdict, being against the overwhelming weight of the evidence, incredible and improbable and so weak as to conclusively show that the jurors misapprehended the legal effect of the instructions and so misapprehended the principles of law governing the case.

Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3; Teche Lines, Inc. v. Dewey Bounds, 179 So. 747; Y. & M. V. R. R. Co. v. Lamensdorf, 178 So. 80; Teche Lines v. Mason, 144 So. 383; Mobile & O. R. Co. v. Johnson, 164 Miss. 397, 141 So. 581; Columbus & G. Ry. v. Buford, 150 Miss. 832, 116 So. 817; Railroad Co. v. Enochs, 42 Miss. 603; Hill v. Jones, 18 Ann. Cas. 359.

The court erred in instructing the jury to find for the plaintiff if the jury believed that the defendant was negligent in maintaining the plank walkway "as testified by plaintiff and his witnesses."

Y. & M. V. R. R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Gurley v. Tucker, 155 So. 189; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; McDonough Motor Express, Inc. v. Spiers, 176 So. 723.

The court should have sustained defendant's motion for a mistrial when plaintiff's attorney in qualifying a juror, asked said juror in the presence and hearing of the other members of the jury, the following question: "Mr. Williams, do you own any stock in any insurance companies or corporations ?"

Herrin, Lambert & Co. v. Daly, 80 Miss. 340; Mississippi Ice & Utilities v. Pearce, 161 Miss. 252, 134 So. 164; Avery v. Collins, 157 So. 695; Whatley v. Boolas, 177 So. 1.

The court erred in allowing an X-ray technician to interpret an X-ray picture expressing opinions which he was not shown to have been qualified to express.

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; Miss. Power & Light Co. v. Jordan, 164 Miss. 174, 143 So. 483; Beard v. Turritin, 173 Miss. 206, 161 So. 688.

The court erred in refusing to allow appellant to show a method of descent from the scaffold available to appellee which had been used daily by employees for eighteen months preceding the accident in its same condition and that no employee had received an injury while using same.

Southern Ry. v. McLellan, 80 Miss. 700, 32 So. 283; Smith Lbr. Co. v. McLean, 202 Ala. 32, 79 So. 370; Barnett v. Coal & Coke Co., 81 W.Va. 251, 95 S.E. 150; Ingrain v. Prairie Block Coal Co., 319 Mo. 644, 5 S.W.2d 413.

The verdict of the jury in this case is so excessive that it evidences passion and prejudice on the part of the jury.

Postal Telegraph Co. v. Scott, 79 So. 767.

Barnett, Jones & Barnett and John E. Stone, all of Jackson, for appellee.

Proximate cause of plaintiff's injuries is question for jury and not for the court.

Moulton v. St. Jones Lbr. Co., 120 P. 1057; Perry v. Davis & Sargent Lbr. Co., 102 N.E. 320; Boyles v. Columbian Fireproofing Co., 64 N.E. 726; Aetna Powder Co. v. Earlandson, 33 Ind.App. 251; Rustan v. Southern Alaska Canning Co., 205 P. 369; Mid-Continent Petroleum Corp. v. Hane, 56 F.2d 989; Headrick v. Williams Cooperate Co., 134 S.W. 957; Brady v. Florence & C. C. R. Co., 98 P. 321; Johnson v. St. Louis & S. F. Co., 141 S.W. 475, 160 Mo.App. 69; Norris v. Cudahy Packing Co., 100 N.W. 853; Lauter v. Duckworth, 48 N.E. 864; Swarm-Day Lbr. Co. v. Thomas, 112 S.W. 907; Mahoney v. Beatman, 110 Conn. 184, 147 A. 762; 22 R. C. L., page 148, and Perm. Supp., page 5186; Hardy v. Turner-Farber-Love Co., 101 So. 489; Cotton Mill Products Co. v. Oliver 121 So. 111; White v. Louisville, N. O. & T. Ry., 72 Miss. 12, 16 So. 248; Magers v. Okolona, Houston & Calhoun City R. Co., 105 So. 416; Wilbe Lbr. Co. v. Calhoun, 140 So. 680; Reynolds-West Lbr. Co. v. Taylor, 23 F. 1336; Strickland v. Harvey, 179 So. 345; Sec. 513, Code of 1930.

The jury was correctly instructed as to the law principle governing.

Hammond v. Morris, 126 So. 906; St. Louis & S. F. R. Co. v. Ault, 58 So. 102.

There was no error in counsel for appellee questioning the prospective juror on his ownership, if any, of stock in an insurance company or corporation.

Yazoo City v. Loggins, 110 So. 833; Avery v. Collins, 157 So. 695; Merchants Co. v. Tracy, 166 So. 340; Lee County Gin Co. v. Middlebrooks, 137 So. 108; Blair v. McCormick Const. Co., 107 N.Y.S. 750; Murphy v. Shaffer, 208 P. 1003; Tissue v. Durin, 246 N.W. 806; Billings v. Aldridge, 3 P.2d 639; Barrett v. Harman, 1 P.2d 458; Jolly v. Smith, 65 S.W.2d 908; Iriquois Furnace Co. v. McCrea, 61 N.E. 79.

The court did not err in allowing Dr. Parmalee to testify in regard to the X-ray pictures.

Liles v. Hannah Pickett Mills, Inc., 197 N.C. 772, 150 S.E. 363; State v. Matheson, 120, N.W. 1036; Ladlie v. American Glycerin Co., 223 P. 272; Whipple v. Grand- champ, 158 N.E. 270, 57 A.L.R. 974; Saas v. Hindmarsh, 184 N.Y.S. 467; Rawleigh v. Donoho, 38 S.W.2d 277; Beard v. Turritin, 161 So. 688.

The court did not err in refusing to allow the appellee to show a method of descent from the scaffold for eighteen months preceding the accident in the same condition and that no employee had received an injury while using same.

Texas Co. v. Mills, 156 So. 866; Southern Ry. Co. v. McLellan, 32 So. 283; Jones on Evidence, Civil Cases (3 Ed. ), sec. 163.

The verdict of the jury is not excessive and does not evince any passion or prejudice on its part.

American Digest System, Damages, Key No. 127 et seq.

Argued orally by Tom Watkins, for appellant, and by Ross R. Barnett, for appellee.

OPINION

McGowen, J.

Brummett, the appellee, recovered a judgment against the appellant, Graham, for personal injuries sustained by him as the servant of the latter while about the performance of his duties.

Tersely stated, the essential facts are these: The appellee testified that there were two scaffolds, an upper scaffold approximately fourteen feet above the concrete floor of the stave mill in which he was working for the appellant; and a lower one, approximately a foot and a half below the upper scaffold; that the upper scaffold consisted of two by eight inch planks, which ran east by west, parallel with each other and approximately two feet apart: that he ascended to the upper scaffold upon a ladder which was resting against the first board of the upper scaffold on the south side; that the ladder was near the west end of the board: that south of the upper scaffold. and east of the ladder there was a lower scaffold, the first board of which, nearest to the higher scaffold was approximately two and a half feet south of the south board of the higher scaffold, and approximately a foot and a half lower than the south board of the higher scaffold. Just north of the southernmost plank of the upper scaffold and approximately six feet west of the east side of the upper scaffold, there was a drive-shaft and wheel over which a belt ran, the wheel being approximately four feet in diameter. Appellee ascended the upper scaffold to adjust that belt, climbing the ladder which led to the southernmost board of the upper scaffolds, from which point he states that he stepped across on to the other boards of the upper scaffold, walked in an easterly direction down one of these boards, and stepped back across to the southernmost board of the upper scaffold, on the east side of the drive shaft wheel, where he did his work, shifting the belt. While so engaged the superintendent, Kellogg, told him to come down and start the engine. He attempted to descend by stepping from the southernmost board of the upper scaffold to the northernmost board of the lower scaffold, which step. was made from a point about two and a half feet north of, and one and a half feet higher than, the board on which he was stepping; and he testified that in the attempt to make this step the board on which he was standing slipped backward, and he fell...

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    ...safe way, knowing the servant was using that way. Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80; Stricklin v. Harvey, 179 So. 345; Graham v. Brummett, 181 So. 721. court will bear in mind that Davis undisputedly had completed the work and was rubbing his eyes, resting them from the glare of the t......
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