J. J. Newman Lumber Co. v. Boggs

• Decision Date: 28 February 1927
• Docket Number: 26229
• Citation: 111 So. 562,146 Miss. 440
• Court: Mississippi Supreme Court
• Parties: J. J. NEWMAN LUMBER CO. v. BOGGS. [*]

111 So. 562

146 Miss. 440

J. J. NEWMAN LUMBER CO. v. BOGGS. ^[*]

No. 26229

Supreme Court of Mississippi

February 28, 1927

Division B

1 TRIAL. Refusal of instruction, presenting employer's contention on conflicting evidence, as to whether way to work was safe was error.

In a suit for personal injury, based on failure to provide a safe way to go to and from work, where the evidence is conflicting as to whether the way, on which the injury was inflicted, was provided for that purpose or not, it was error to refuse an instruction presenting the defendant's contention with reference thereto.

2. TRIAL. On conflicting evidence as to whether passageway was provided by employer, refusal of instruction, assuming negligence of employee in using it, was not error.

Where the evidence is conflicting as to whether said way was provided by the company, and the testimony of the plaintiff tended to show that the way was used as such by the employees of the company when it suited their convenience, or that it was frequently so used, it is not error to refuse an instruction which assumes that the plaintiff was guilty of negligence.

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Lamar county, HON. J. Q. LANGSTON Judge.

Action by I. T. Boggs against the J. J. Newman Lumber Company for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

H. Cassedy Holden and Mounger & Mounger, for appellant.

According to the plaintiff's testimony, he was injured by reason of the negligence of the defendant in leaving an unguarded and unlighted hole in the floor of a passageway which was a regular and customary way used by employees in going to their work.

According to the evidence of the defendant, the plaintiff was injured by reason of his own negligence in using a passageway that was not customarily traveled by employees going to and from their work, and by reason of his own negligence in turning aside from a regular way or dock which would have carried him in safety to his place of work, and by his negligence in failing to look ahead and take precautions to avoid injury to himself.

We submit that the evidence is overwhelming that the plaintiff was provided with several different ways for use in reaching his work, all of which were safe, and that he deliberately chose a route that was unsafe, or at least was not a customary route and not intended for use in going to his work. We also submit that the evidence is overwhelming that the plaintiff was injured so slightly, if at all, that he was not entitled to more than nominal damages.

I. The refusal of a peremptory instruction was erroneous. 39 C. J. at 349-350; C. & R. Lbr. Co. v. Crane, 135 Miss. 303, 99 So. 753; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Ovett Land and Lbr. Co. v. Adams, 109 Miss. 740, 69 So. 499; Sauer v. Union Oil Co. (1891), 43 La. Ann. 699, 9 So. 566; Headford v. McClary Mfg. Co. (1893), 23 Ont. Rep. 335, (1894), 21 Ont. App. Rep. 164, (1894) 24 Can. S. C. 291; Fritz v. Salt Lake & O. Gas. & E. L. Co. (1899), 18 Utah 493, 56 P. 90; The Tammerland (1891), 47 F. 822; Carbury v. Eastern Nut & Bolt Co. (1905), 27 R. I. 116, 60 A. 773; B. F. Avery & Sons v. Lung (1908), 32 Ky. L. Rep. 702, 106 S.W. 865; Connors v. Merchants Mfg. Co. (1904), 184 Mass. 466, 69 N.E. 218; Linseed Co. v. Heins (1905), 72 C. C. A. 533, 141 F. 45; Antee v. D. C. Richardson Taylor Lbr. Co. (1909), 123 La. 117, 48 So. 7651; H. D. Williams Cooperage Co. v. Headrick (1908), 86 C. C. A. 548, 159 F. 680; Gleason v. Suskin (1909), 110 Md. 137, 72 A. 1034; Perkins v. Oxford Paper Co. (1908), 104 Me. 109, 71 A. 476; MeKean v. Colo. Fuel & Iron Co. (1903), 18 Colo.App. 285, 71 P. 425; 18 R. C. L. at 584; 39 C. J. at 848; Birrell v. Great Northern R. R. Co., 61 Wash. 336, 112 P. 362, Ann. Cas. 1912b 1239; Denver, etc., R. R. Co. v. Komfala, 69 Colo. 318, 194 -- 615; Chisholm v. Manhattan Ry. Co., 116 A.D. 320, 101 N.Y.S. 622; Papandrianos v. N. Y. Cent., etc. R. R. Co., 244 Mass. 216, 138 N.E. 547; Kennedy v. Merrimack Pav. Co., 185 Mass. 442, 70 N.E. 437; Louisville, etc., R. R. Co. v. Wright, 170 Ky. 230, 185 S.W. 861; Douglas v. So. Pac. Co., 151 Cal. 242, 90 P. 538.

This case is on a perfect parity with that of Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179, where the court held that a peremptory instruction should have been given the defendant because the evidence showed that the negligence of the plaintiff was the sole cause of the injury. See, also, Ekler v. Nix, 114 Miss. 293, 75 So. 120; and McKinnon v. Braddock (Miss.), 104 So. 154.

H. The refusal of instruction number two requested by the defendant was erroneous. 39 C. J. 349-350, citing numerous cases. The refusal of this instruction is manifest error under the express ruling of this court in McKinnon v. Braddock, 104 So. 155.

III. The refusal of instruction number three requested by the defendant was erroneous. It is improper and reversible error to refuse instruction on contributory negligence where the evidence justifies it. Lookout Fuel Co. v. Phillips (Ala), 66 So. 946. The facts in this case are analogous to the facts in the case of Davis v. McCullers, 126 Miss. 521, 89 So. 158, where this court held that the jury should have been instructed that the plaintiffs, suing for damages for personal injuries, were guilty of contributory negligence as a matter of law. See, also, R. R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954; R. R. Co. v. Williams, 114 Miss. 236, 74 So. 835.

Rawls & Hathorn, for appellee.

Appellant was not entitled to a peremptory instruction. We cannot conceive how a clearer case of liability could be established. Appellant's authorities cited in support of their argument for a peremptory instruction are not applicable to the facts in this case as an examination of them will convince the court and, therefore, they are not considered.

Instruction number two was properly refused; but if we are in error in this, no harm was done appellant for the reason that there were other instructions which correctly announced the law. The instruction was improper for the reason that it leaves out the question as to whether appellee knew or ought to have known by the exercise of reasonable care that it was not a way prepared for him to travel on.

Appellant's other complaint is on the refusal by the trial court of two instructions. These instruction were properly refused for two all-sufficient reasons. First, they ask the court to instruct the jury as a matter of law that appellee was guilty of contributory negligence; and, second, contributory negligence was not plead, and, therefore, could not be availed of.

Under our statute, contributory negligence is a question for the jury. See section 503, Hemingway's Code. There is no similarity whatever in Davis v. McCullers, 89 So. 158, and the case at bar. Under the common law contributory negligence is an affirmative defense and must be plead and the burden is on the pleader to establish it. See 18 R. C. L., page 637, paragraph 133; M. & O. R. R. Co. v. Campbell, 114 Miss. 828-29; Seaboard Air Line R. R. Co. v. Moore, 228 U.S. 433, 33 S.Ct. 580, 57 L.Ed. 907; G. & S. I. R. R. Co. v. Saucier, 104 So. 180.

Conceding again, for the sake of argument only, that appellant was entitled to have submitted to the jury the question of whether or not appellee was guilty of contributory negligence, it was incumbent upon appellant to request the court for such instruction and failing so to have done, they cannot complain. See Lindsey Wagon Co. v. Nix, 108 Miss. 814.

OPINION

ETHRIDGE, J.

The appellee was plaintiff in the court below, and the appellant defendant there. The plaintiff brought suit against the defendant for a personal injury, caused by his falling through an unguarded opening on one of the floors of the defendant's mill where he worked as an employee. It appears that on the morning of the injury there had been an unusual rainfall, and by reason thereof the stream which fed the pond of defendant's mill had overflowed and caused certain passageways in the mill to be covered with water. The plaintiff was on the way to his work at the mill and found the regular passageway obstructed by the overflow water, whereupon he turned and went through a passage which was not used for a passageway often by the employees, but seemed to have been designed for other purposes, although the plaintiff's proof tended to show that it was used by employees in going to and from their work occasionally. On the occasion of the injury, it was early in the morning, around or near daylight, and most of the passageways of the mill were lighted, but there was no light over the particular passageway through which the plaintiff started to his work after finding the regular passageway obstructed, and this passageway was rather dark. There was an opening in the planked covering of the way used by the company for its employees to go under the floorway for necessary purposes, and this opening was not protected by guardrails. Near this opening was a barrel, used by the company for some purpose--presumably water--and plaintiff in walking around the barrel stepped into the hole in the floorway and was injured. Two other employees, passing the same way, shortly afterwards, discovered the plaintiff and assisted him in getting to a place so that he could return to his home.

The plaintiff's testimony showed that...