Harris v. Pounds

• Decision Date: 17 April 1939
• Docket Number: 33575
• Citation: Harris v. Pounds, 185 Miss. 688, 187 So. 891 (Miss. 1939)
• Court: Mississippi Supreme Court
• Parties: HARRIS et al. v. POUNDS

187 So. 891

185 Miss. 688

HARRIS et al. v. POUNDS

No. 33575

Supreme Court of Mississippi

April 17, 1939

Suggestion Of Error Overruled May 22, 1939.

APPEAL from the circuit court of Marion countyHON. J. C. SHIVERS Judge.

Action of tort by Russell Pounds against L. E. Harris and others for injuries sustained when the defendants, as employers of plaintiff, ordered plaintiff and five co-workers to carry a hardwood log over rough, uneven and slippery ground.From a judgment for the plaintiff, the defendants appeal.Reversed and rendered.

Reversed, and judgment here for appellant.

Rawls & Hathorn, of Columbia, for appellants.

Appellee failed to make out a case of liability against appellants, and failed to prove those allegations of his declaration necessary to prove in order to recover against appellants.

Appellee failed to prove that the log which he says he was required to carry was of such great weight that it could not be carried by six men with reasonable safety, and has left the jury without any kind of guide to determine the probable weight of the log, and thus required the jury to resort to conjecture, surmise or speculation in determining the probable weight of the log, which was a vital and controlling issue in the case.

Owen v. I. C. R. R. Co., 24 So. 900, 77 Miss. 142;I. C. R. R. v. Cathey,12 So. 254, 70 Miss. 332;Tyson v. Utterback,122 So. 498, 154 Miss. 381;Hercules Powder Co. v. Calcote,138 So. 584, 161 Miss. 860;Y. & M. V. v. Green,147 So. 334, 167 Miss. 137;N. O. & N. E. R. R. v. Holsomback,151 So. 720, 168 Miss. 493;Columbus C. & R. Co. v. Coleman,160 So. 279, 172 Miss. 514;Patton v. T. & P. R. R. Co.,179 U.S. 658;G. M. & N. R. R. Co. v. Collins,117 So. 595, 151 Miss. 240.

Appellee assumed the risk incident to the ground being uneven, wet, slippery and boggy.

39 C. J., page 704, par. 907, page 705, par. 908, page 709, par. 909, and page 726, par. 933;Y. & M. V. v. Hullum,80 So. 545, 119 Miss. 229;Austin v. M. & O. R. R. Co.,99 So. 3, 134 Miss. 226;G. M. & N. R. R. Co. v. Collins,117 So 595, 151 Miss. 240.

Appellee assumed the hazard or risk incident to the changing conditions, especially as to condition of place where he was required to work.

39 C. J. 710, par. 912;Cybur Lbr. Co. v. Erkhart,79 So. 235, 118 Miss. 401.

Appellee not only failed to prove actionable negligence on the part of the master, but the testimony of his witnesses shows that his alleged injury was caused by the negligence of his fellow servants.

Appellee failed to offer proof that the log in question was too heavy for six men to carry with reasonable safety, and since the weight of the log could have been shown with reasonable certainty and was not so shown the presumption is that this evidence would have been detrimental to his cause.

Masonite Corp. v. Hill, 154 So. 295, 170 Miss. 158;22 C. J. 115, par. 55;23 C. J. 40, par. 1784.

Appellee has failed to prove by reasonably believable evidence what caused the three men in front to drop their end of the log or let it down to the ground

The undisputed testimony is that appellee and his co-workers were furnished with sticks or poles with which to carry or move logs and heavy timbers on the right of way, and that appellee and his co-workers selected the dangerous method of carrying the log with their hands rather than the safe way of carrying it with sticks or poles.

Favre v. L. & N. R. R. Co., 179 So. 329;Stokes v. Adam-Newell Lbr. Co.,118 So. 441, 151 Miss. 711.

The overwhelming weight of the evidence shows appellants were not guilty of negligence proximately causing appellee's alleged injuries; appellee's cause is not supported by reasonably believable evidence; the jury had to resort to surmise, conjecture and speculation in order to determine the probable weight of the log, and the reason for the three men at the front end of the log letting it down or dropping it.

Williams Yellow Pine Co. v. Henley, 125 So. 152, 155 Miss. 893;Great Atlantic & Pacific Tea Co. v. Davis,171 So. 550;Brown v. State,121 So. 297, 153 Miss. 737;Byrd v. State, 123 So. 867, 154 Miss. 742.

Henry Mounger and Hall & Hall, all of Columbia, for appellee.

The question before the jury was whether the log was too heavy for six men to carry with reasonable safety, under the proven circumstances.

Natural Gas Engineering Corp. v. Bazor, 137 So. 788;Hardaway Contracting Co. v. Rivers,181 Miss. 727, 180 So. 800;39 C. J. 1092.

Appellee did not assume the risk incident to carrying the log under the circumstances confronting him.

Sec. 513, Code of 1930;Gow Co., Inc. v. Hunter,175 Miss. 896, 168 So. 264;Hercules Powder Co. v. Tyrone,155 Miss. 75, 124 So. 475;Sea Food Co. v. Alves,117 Miss. 1, 77 So. 857;Goodyear Yellow Pine Co. v. Mitchell,168 Miss. 152, 149 So. 792;Everett Hardware Co. v. Shaw,178 Miss. 476, 172 So. 337;Hardaway Contracting Co. v. Rivers,181 Miss. 727, 180 So. 800;Pearl River Valley R. Co. v. Moody,178 Miss. 1, 171 So. 769;39 C. J. 689;St. Louis & S. F. R. Co. v. Guin,109 Miss. 187, 68 So. 78;Austin v. M. & O. R. R. Co.,134 Miss. 226, 99 So. 3;Y. & M. V. R. Co. v. Dees, 121 Miss. 439, 83 So. 613.

Appellee did not assume the hazard incident to his place of work.

Cybur Lbr. Co. v. Erkhart, 118 Miss. 401, 79 So. 235.

Appellee's injury was not caused by the negligence of his fellow servants.

Scott Burr Stores Corp. v. Morrow, 180 So. 741;Currie & Turner Const. Co. v. Bryan,185 So. 256;Jefferson v. Virginia-Carolina Chemical Co.,185 So. 230;Gulf Refining Co. v. Ferrell,165 Miss. 296, 147 So. 476;Section 512, Code of 1930.

Appellee's injuries were not due to unavoidable accident.

Appellee's proof as to the cause of the accident abundantly supports the finding of the jury.

Appellee did not adopt an unsafe means of carrying the log, but acted under order of his foreman.

Hardy v. Turner-Farmer-Love Co., 101 So. 489, 136 Miss. 355.

The overwhelming weight of the evidence is not against appellee's case.

3 Am. Jur., Appeal and Error, sec. 246;Flynn v. Kurn,184 So. 161;Standard Oil Co. v. Franks,187 Miss. 282, 149 So. 798;Watson v. Holiman,169 Miss. 585, 153 So. 669;Standard Coffee Co. v. Carr,171 Miss. 714, 157 So. 685;Coccora v. Vicksburg Light & Traction Co.,126 Miss. 713, 89 So. 257;Section 568, Code of 1930.

OPINION

Griffith, J.

Appellee recovered judgment in an action of tort against appellants on the allegation that appellee and five co-workers, employes of appellants, were ordered by appellants, over the protest of appellee, to carry a hardwood log over rough, uneven and slippery ground, it being averred by appellee that the log was too heavy to be safely carried by six men over such ground, and that appellants should have known this on the exercise of reasonable care.

In considering this complaint of appellee, that the log which he and his five fellow workers were required, by concerted action, to carry was too heavy for six men, we are at once confronted with the point made by appellants and with the fact that there is no sufficient evidence in the record of the weight, actual or approximate, of the said burden.How, then, was the jury to say, of their own independent judgment, whether it was too heavy?The only fact in this record from which a conclusion may be reached as to the weight of the log is its size, to-wit, that it was about 15 feet long and of an average diameter of about 12 inches, and that it was hardwood log, --but of what species is not shown.

And if it be argued that, because the county in which the case was tried is one abounding in timber growth, jurors from their common observation may estimate the approximate weight from the above data, this would be to say that it is a matter of which common or judicial knowledge may be taken.

It is true that a jury has the right to take into consideration all that knowledge which is common to the average man and springs from the ordinary relations and experiences of life, and in their adjudications may use and apply their own knowledge and observation as regards such ordinary experiences and relations; but their province, in respect to the knowledge of facts which they may thus judicially notice and act upon, without record evidence of the particular facts, is no broader than that of the judge on the bench, who has the power and duty of supervision and review over jury verdicts.1 Jones, Com. on Evidence(2 Ed.), secs. 471, 472;5 Wigmore on Evidence (2 Ed.), sec. 2570.

If, then, the weight of a hardwood log of a given size and of a certain species is within the common knowledge of the jury, it is at the same time and as fully a matter of which the presiding judge could take judicial knowledge, and hence of which we here may know judicially, and, therefore, may resort for actual knowledge of it to any such informative source as the court may deem dependable.Witherspoon v. State,138 Miss. 310, 320, 103 So. 134;Jones v. United States,137 U.S. 202, 11 S.Ct. 80, 34 L.Ed. 691, 697;1 Jones, Com. on Evidence(2 Ed.), sec. 469;7 Ency. Ev., p. 1031.

So doing, we could turn to Scribner's Lumber and Log Book, a book mentioned in our statutes, section 7358,Code 1930, and there we would find that the approximate weight of a hardwood log of the length and diameter above mentioned is given as 328 pounds for poplar, the lightest, to 538 pounds for beech the heaviest dealt with therein, and that the average for all species is 438; and looking further to common knowledge, we could with perfect confidence say, and a jury of reasonable and impartial men would be bound to say, that a log weighing 438 pounds or 538 pounds is not too heavy a burden for six workmen of normal strength.This would be only seventy-three pounds or...