J. W. Sanders Cotton Mill Co., Inc. v. Bryan

• Decision Date: 21 March 1938
• Docket Number: 33109
• Citation: 179 So. 741,181 Miss. 573
• Court: Mississippi Supreme Court
• Parties: J. W. SANDERS COTTON MILL CO., INC., v. BRYAN et al

179 So. 741

181 Miss. 573

J. W. SANDERS COTTON MILL CO., INC., v. BRYAN et al

No. 33109

Supreme Court of Mississippi

March 21, 1938

Division B

APPEAL from the circuit court of Oktibbeha county, HON JOHN C STENNIS, Judge.

Suit for a personal injury by John Bryan, a minor, by next friend against the J. W. Sanders Cotton Mill Company, Incorporated. From a judgment for plaintiffs, defendant appeals. Affirmed with remittitur.

Affirmed with remittitur.

John D. Greene, Jr., of Starkville, and Watkins & Eager, of Jackson, for appellant.

The appellant was entitled to a directed verdict at the conclusion of appellee's evidence, and was entitled to a peremptory instruction at the conclusion of all the evidence.

Poplarville Lbr. Co. v. Kirkland, 149 Miss. 116, 115 So. 191; Dobbins v. Lookout Oil & Refining Co., 133 Miss. 248, 97 So. 546; Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Columbus & Greenville R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236,; Brown v. Coley, 168 Miss. 778, 152 So. 61; Ovett Land & Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Eastman-Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Martin v. Beck, 177 Miss. 303, 171 So. 14; Anderson-Tully Co. v. Goodin, 174 Miss. 162, 163 So. 536; Cobb Bros. v. Campbell, 170 So. 293; Stokes v. Adams-Newell Lbr. Co., 151 Miss. 711, 118 So. 441; Whatley v. Anderson-Tully Co., 12 F.2d 268; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.

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

City of Greenwood v. Pentecost, 148 Miss. 60; 114 So. 259; Truman v. Kansas City, M. & O. R. Co., 161 P. 587; Act No. 20 of Louisiana Laws of 1914, as amended, Sec. 4 (d); McAfee v. Ogden, etc., R. Co., 418 P. 98; Lancaster v. Hynes, 214 S.W. 957; Lyons v. New Orleans T. & M. Ry., 74 So. 584; 46 A.L.R. 1295.

Appellant's motion for a continuance should have been sustained by the trial court

Coleman v. Bowman, 135 Miss. 137, 90 So. 465; Hemingway v. State, 68 Miss. 371.

Lavell Brown, of Starkville, for appellees.

It is obvious that appellant has waived the question of whether or not appellant was entitled to a directed verdict at the conclusion of the appellee's evidence, which law is clearly announced in the following authorities: Alabama & V. Ry. Co. v. Kelly, 88 So. 707, 126 Miss. 276, also Nebhan v. Mansour, 139 So. 166, 162 Miss. 418. The appellant introduced evidence after motion.

Where the master knows, or ought to know, the dangers of the employment, and knows, or ought to know, that the servant, by reason of his immature years or in-experience, is ignorant of, or unable to appreciate, such dangers, it is his duty to give him such instruction and warning of the dangerous character of the employment as may reasonably enable him to understand its peril.

36 C. J., pages 514, 522; 18 R. C. L., pages 567 and 572; I. C. v. Price, 18 So. 417, 72 Miss. 862; Cumberland Tel. & Tel. Co. v. Cosnahan, 62 So. 824, 105 Miss. 615; Dobbins v. Lookout Oil & Refining Co., 97 So. 546, 133 Miss. 248; Williams Yellow Pine Co. v. Henley, 125 So. 552, 155 Miss. 893; Miss. Cent. R. Co. v. Roberts, 160 So. 604, 173 Miss. 487.

We submit the following authorities to sustain our view that where a litigant submits an issue and pursues certain theories in the trial of their cause that they are estopped to claim error in the action of the trial court in submitting such issues to the jury and they are estopped to complain at the jury's verdict on such issues and cannot take an inconsistent position where cause at their request the sufficiency of the guard and the question of approximate cause was brought to the jury by their instruction for determination.

Section 586, Code of 1930; Yazoo Mississippi Valley R. R. Co. v. Wade, 139 So. 403, 162 Miss. 699; Brush v. Laurendine, 150 So. 818, 168 Miss. 7; Sunflower Compress Co. v. Clark, 153 So. 823.

The care and duty of the master is dependent upon the knowledge and experience of the servant, together with his age, and in fact all of the conditions are to be considered in determining what degree of duty the master owes in the case here.

39 C. J. 320, sec. 444.

Whether the master has exercised reasonable care in furnishing his servant reasonably safe instrumentalities and a place for work depends in some degree upon the maturity, intelligence and discretion of the servant employed, and in the case of youthful employees he must exercise a degree of care which has regard for their youth and inexperience.

39 C. J. 283 and 284, sees. 410 and 411; Ross v. L. & N. R. Co., 178 Miss. 69, 172 So. 752; Wilbe Lbr. Co. v. Calhoun, 140 So. 680, 163 Miss. 80.

Appellant did not fulfill the duty imposed upon it in that it failed to supply a guard for the knives of this automatic shearing machine, into which cloth passed at a rapid rate of speed, and which would protect the life and limb of the operator in straightening out the kinks and wrinkles, such a guard being inexpensive, simple to make, and which when made and placed on the machine did not interfere with the running thereof.

A servant never assumes the risk that grows out of the master's negligence however plain or obvious and, the risk he does assume is the peril incident to the service remaining after the master has exercised ordinary care. And it is for the jury to decide as to whether the master has exercised ordinary care.

Kuhn v. Lusk, 219 S.W. 638; Williams v. Pryor, 272 Mo. 613; Brooks v. DeSoto Oil Co., 57 So. 228, 100 Miss. 849; Dettering v. Levy, 79 A. 476.; Westman v. Lbr. Co., 91 P. 478; Prattville Cotton Mills v. McKinney, 178 Ala. 554, 59 So. 498; Murray v. Natchez Drug Co., 100 Miss. 260, 56 So. 330; Edwards v. Haynes-Walker Lbr. Co., 113 Miss. 378, 74 So. 284.

The question of the master's negligence in respect to covering or guarding machinery in general, and such as we have in this case, is generally a question for the jury.

39 C. J., page 1151; Jones v. Ripley State Co., 203 Ala. 60, 82 So. 20; Harrod v. Stout-Greer Lbr. Co., 113: S.W. 39; Finckle v. Bolton Lbr. Co., 132 N.Y.S. 1038; Krueck v. Phoenix Chair Co., 157 Wis. 266, 147 N.W. 41; Kerling v. G. W. Van Dusen Co., 121 N.W. 227; Cotton Mill Products Co. v. Oliver, 121 So. 111; Hardy v. Turner Co., 101 So. 489; Cecil Lbr. Co. v. McLeod, 122 Miss. 767, 85 So. 78.

It is, of course, fundamental that all instructions must be read together and that the same constitute a single charge to the jury.

Hawkins v. Hudson, 45 Ala. 482; Bolsen v. Omaha St. Ry. Co., 119 N.W. 771; Friedman v. Allen, 118 So. 828, 152 Miss. 377; Gulfport Fertilizer Co. v. Bilbo, 174 So. 65; Cranford v. Maryland Casualty Co., 115 So. 586, 149 Miss. 345; Y. & M. V. Ry. v. Mullen, 131 So. 101, 158 Miss. 774; 48 So. 614; 118 So. 828; 150 So. 192; 174 So. 65; McLemore & McArthur v. Rogers, 152 So. 883; Mitchell v. McGee & Alford, 48 So. 234.

In reviewing the propriety of the trial court in refusing to grant to appellant a peremptory instruction, Supreme Court must view appellee's evidence in its strongest light.

Y. & M. V. R. Co. v. Beasley, 130 So. 499, 158 Miss. 370; Williams v. Gardner, 128 So. 111, 157 Miss. 252.

We submit that this boy's left hand is almost severed and he is permanently injured for life. He has practically no left hand whatsoever, thus we have a seventeen year old boy handicapped for life. We respectfully submit that the amount the jury awarded is not excessive and does not show on the part of the jury passion or prejudice.

Superior P. Cooper Co. v. Tomich, 19 Ariz. 182, 165 P. 1101; Bright v. Sammons, 214 S.W. 425; Mabe v. Gille Mfg., 28 S.W. 1023; Dillon v. E. HelIer & Bros., 99 N.J.L. 68, 122 A. 595; Montgomery v. Hammond Packing Co., 217 S.W. 867.

Argued orally by John D. Greene, Jr., and Tom Wappellant, and by Lavell Brown, for appellee.

OPINION

Ethridge, P.J.

John Bryan, a minor, by next friend, brought suit against the appellant for a personal injury sustained by him, the index and middle fingers of the left hand being severed at the palm, and the ring finger injured, while he was engaged in the operation of a shearing machine used in the appellant mill at Starkville, Miss., in the manufacture and processing of cloth. He sued for $ 15,000, and recovered a verdict for $ 7,500, for which judgment was entered; from which judgment this appeal is prosecuted.

The grounds upon which negligence is alleged in the case were: First, that the appellant had not properly instructed the appellee, an inexperienced employee; second, that the machine furnished the appellee was out of repair generally, particularly in that it would not trip automatically; third, that the appellant should have furnished a guard which would prevent appellee from putting his hand into the blades. Or, stated another way, that the appellants had not furnished the appellee a safe place in which to work, and a safe instrumentality with which to do the work; and had not instructed appellee in the proper method of operating the machine, he being a minor 17 1/2 years of age, and claiming to be inexperienced in the operation of the particular machine hero involved; and had not furnished a guard which would have prevented plaintiff's hand from being caught in the machine--which guard was placed on the machine after the injury was sustained.

The plaintiff testified with reference to the character and construction of the machine, as follows:

"Q. Now explain to the jury, if you can, what you were...