J. J. Newman Lumber Co. v. Dantzler

• Decision Date: 30 March 1914
• Docket Number: 16357
• Citation: 64 So. 931,107 Miss. 31
• Court: Mississippi Supreme Court
• Parties: J. J. NEWMAN LUMBER CO. v. ADOLPH DANTZLER

64 So. 931

107 Miss. 31

J. J. NEWMAN LUMBER CO. v. ADOLPH DANTZLER

No. 16357

Supreme Court of Mississippi

March 30, 1914

APPEAL from the circuit court of Forest county, HON. PAUL B JOHNSON, Judge.

Suit by Adolph Dantzler against the J. J. Newman Lumber Company. From a judgment for plaintiff, defendant appeals.

Appellee a negro boy about sixteen or seventeen years of age, was plaintiff in the court below, and appellant was defendant. There was a judgment for plaintiff for three thousand dollars for injuries received, which resulted in the amputation of plaintiff's leg above the knee, from which an appeal is taken. The opinion states the facts.

The fifth, sixth, and seventh assignments of error are as follows:

"Fifth. The court erred in admitting in evidence over the objection and exception of the appellant, as appears in the record at pages 123 and 124 in the cross-examination of W. J. Haynen, a witness for appellant, statements of the witness in answer to hypothetical questions propounded by counsel for appellees to the effect that, if Teel did not carry out witness' instructions as to the employment of minors, he violated instructions; such testimony being wholly irrelevant to the issue, incompetent, and calculated to prejudice the minds of the jury.

"Sixth. The court erred in overruling appellant's motion to exclude all the testimony and to instruct the jury to find for it, made after appellee rested, as appears at page 108 of the record; it appearing from the testimony as stated and specified in said motion that the proof wholly failed to support any ground of liability set forth in the declaration and the appellee not asking the court for permission to amend the declaration, so as to support it, if possible by the proof.

"Seventh. The court erred in overruling appellant's motion, made at the conclusion of the testimony, as appears in the record at page 196, to exclude all the evidence for reasons stated in said motion, and to grant it a peremptory instruction."

The ninth instruction, asked by the defendant below and refused by the court, is as follows:

"No 9. The court further instructs the jury, for the defendant, that if they believe from the evidence that the plaintiff was injured while attempting to pull a raveled piece or strip from the belt in question, then his own negligence caused the injury, and they should find for the defendant."

The first instruction, given for plaintiff below, is as follows:

"No. 1. The court instructs the jury, for the plaintiff, that if they believe from the evidence that the defendant is guilty of the acts of negligence complained of in the declaration, and that the injury to plaintiff resulted therefrom while he was in the exercise of such reasonable care and caution for his own safety as would be expected of a reasonable person of his age and experience similarly situated, then they must find a verdict for the plaintiff, and assess his damages at such sum as they believe from the evidence he is entitled to receive, not exceeding the amount sued for."

Reversed and remanded.

S. E. Travis, attorney for appellant.

D. E. Sullivan and Currie & Currie, attorneys for appellee.

Argued orally by S. E. Travis, for appellant, and D. T. Currie and D. E. Sullivan, for appellee.

OPINION

COOK, J.

This action was begun in the circuit court of Forest county by appellee, a minor, against appellant, a corporation, engaged in the business of operating a sawmill and planing mill. Appellee was in the employ of appellant, and while operating a planing machine he was injured, because, as he alleges, one of the belts on the machine he was feeding became defective and dangerous, and appellant, having notice of this defect, failed and refused to repair same. The case was submitted to the jury, and a verdict was rendered in favor of appellee, plaintiff below, for three thousand dollars, and appellant, defendant below, appeals to this court.

Defendant below demurred to the declaration, which demurrer was overruled, and this action of the court is the first assignment of error we will notice. The demurrer to the first count of the declaration avers that this count contains two separate and distinct causes of action, to wit: It was the duty of defendant to furnish plaintiff a safe place in which to work, and to warn and instruct plaintiff as to the dangers incident to his work; that the declaration avers appellant violated its duties to appellee in each of said regards. The second count of the declaration was demurred to upon the ground that it also stated several separate and distinct causes of action.

The first count of the declaration describes in circumstantial detail the machinery, its location, character, and the manner in...