J. W. Sanders Cotton Mill, Inc. v. Moody, 33989

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Griffith, J.
• Citation: 195 So. 683,189 Miss. 284
• Parties: J. W. SANDERS COTTON MILL, INC., v. MOODY
• Decision Date: 06 May 1940
• Docket Number: 33989

195 So. 683

189 Miss. 284

J. W. SANDERS COTTON MILL, INC.,
v.
MOODY

No. 33989

Supreme Court of Mississippi, Division A

May 6, 1940

Suggestion Of Error Overruled June 10, 1940.

APPEAL from the circuit court of Lauderdale county HON. ARTHUR G. BUSBY, Judge.

Action by Lula Moody against the J. W. Sanders Cotton Mill, Inc., to recover for personal injuries allegedly received while working in defendant's cotton mill. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Cameron & Wills, of Meridian, for appellant.

The release should not have been rejected, because the charges of fraud in plaintiff's replication are vague and indefinite and mere conclusions, not based on any facts charged.

Griffith's Chan. Practice, paragraphs 501, 589; Gunter v. Henderson Co., 149 Miss. 603, 115 So. 720; Continental Co. v. Joseph, 140 Miss. 582, 105 So. 639; A. & V. Ry. v. Kropp, 129 Miss. 616, 92 So. 691; Alliance v. Armstrong, 186 So. 633.

The record is without any proof of negligence. The only proof as to how the accident happened and why is that given by the plaintiff herself. She merely stated that the latch which held this clearer board on was worn off and was "too short to hold it like it should." It is contended that her mere ipse dixit that the latch was too short, without any showing of how long it ought to have been and how long it actually was, is insufficient.

Harris v. Pounds, 187 So. 891; Hand v. Boatner, 130 Miss. 292, 94 So. 162; Wilson v. Holmes, 180 Miss. 361, 177 So. 24; Dr. Pepper v. Gordy, 174 Miss. 392, 164 So. 236.

Negligence shown was not proximate cause of injury. The short latch was at opposite end of clearer board from one which kicked up.

Tatum v. Crabtree, 130 Miss. 462, 94 So. 449; Wilson v. Holmes, 180 Miss. 361, 177 So. 24.

Plaintiff assumed risk. She was experienced, the contrivance was simple. She knew the condition of the very latches at time of injury and appreciated danger.

Brown v. Coley, 168 Miss. 778, 152 So. 61; Vehicle Co. v. Bowles, 158 Miss. 346, 128 So. 98; Goodyear v. Mitchell, 168 Miss. 152, 149 So. 792; Miss. Co. v. Smith, 166 Miss. 105, 145 So. 896; Hercules v. Tyrone, 155 Miss. 75, 124 So. 74, 475; Allen v. Yarbrough, 133 Miss. 652, 98 So. 117; Middleton v. Faulkner, 180 Miss. 737, 178 So. 583; 39 C. J. 761; Anderson Co. v. Goodin, 174 Miss. 162, 163 So. 536; Eastman Co. v. Caldwell, 177 Miss. 861, 172 So. 126.

Verdict was not based on substantial and believable testimony.

Y. & M. V. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Harris v. Pounds, 187 So. 891; Kramer v. Wilkins, 186 So. 625; Teche v. Bounds, 182 Miss. 683, 179 So. 747; Universal Co. v. Taylor, 175 Miss. 353, 164 So. 3; Masonite v. Dennis, 175 Miss. 855, 168 So. 613; Gulf Co. v. Williams, 183 Miss. 723, 185 So. 234; Dr. Pepper v. Gordy, 174 Miss. 393, 164 So. 236.

The oft-repeated questions about the large number of machines an employee was required to attend, the speed required in performing their duties, and the so-called "stretch out", all tended to the same end and involved the same principle. This was evidently offered to prejudice the jury against the defendant for engaging in practices which form the basis of considerable public discussion.

The only negligence charged in the declaration, and embraced in the instructions, and included in the plaintiff's own proof, had reference to one small finger, or neb, at the north end of one particular clearer board. That is the only thing which should have been covered in the testimony.

The court below permitted the plaintiff's witnesses to give testimony in detail about any allegedly negligent condition which they might conceive to have existed, regardless of how far removed in time and place it was from the point of this accident, or whether it had any relevance to the condition complained of by the plaintiff.

M. V. B. Miller, and Fred Ross, both of Meridian, for appellee.

Appellant was guilty of negligence in its failure to repair or replace the defective latch and such act of negligence proximately caused or contributed to appellee's injury and appellant is liable to her for same.

The supposed writing of release and acquittance was fraudulently had and obtained, the plaintiff being unable to read was well known to the defendant, and that the said supposed release and acquittance was not read to the plaintiff and the plaintiff was purposely led to believe by the defendant that the said supposed release and acquittance was only a paper providing for the treatment and hospitalization for the treatment of her injuries complained of in the declaration and for the payment of her time lost because of her injuries complained of in the declaration; and same was obtained without any consideration.

Randolph Lbr. Co. v. Shaw, 164 So. 588, 174 Miss. 297; Provident Life & Acc. Ins. Co. v. Chapman, 118 So. 440, 152 Miss. 747; Hackler v. Natchez & S. Ry. Co., 128 So. 327, 157 Miss. 432; Gunter v. Henderson Molpus Co., 149 Miss. 611, 612; Griffith's Chan. Practice, Sec. 501; VaCarolina. Chem. Co. v. Jefferson, 192 So. 307.

In stating the evidence on which appellant bases his contentions he never calls the court's attention to the fact that there was evidence directly in conflict with the evidence on which he bases his inferences.

In a case of this kind, the rule is to assume as true the testimony of the party against whom the peremptory instruction is given, and to draw all favorable inferences for such party which might reasonably be drawn by a jury. Applying this rule to the facts before us, we think it was a case for the jury to decide, and it was error to give the peremptory instruction for the defendant.

Columbian Mut. Life Ins. Co. v. Gunn, 163 So. 455, 173 Miss. 897; Lowe v. M. & O. R. Co., 116 So. 601, 149 Miss. 889.

Counsel's entire argument on the point that there was no evidence of negligence is based entirely on a mistaken conception of the record. The record details the manner in which the clearer boards were ordinarily cleaned, the length of the latches in good repair, the distance they ordinarily protruded in the clearer boards. Counsel asks the court to forget all the detailed evidence in the record and put the construction counsel does on two isolated statements of appellee and decide from these isolated statements that there is no evidence of negligence.

The weight put on the board by appellee placing her hand at the north end and the saddle stirrup acting as a fulcrum, caused the board to kick off its latch at the south end and there was no latch at the north end; and it was at the north end only when the south end of the board was above the normal latch at the south end that it was in contact with revolving rollers, and only at the north end; and because of the absence of the latch to hold it at the north end, the board went off.

The latch in question did not have to be the sole cause. If it proximately contributed to appellee's injury, appellant is responsible to appellee.

Lee City Gin Co. v. Middlebrooks, 137 So. 108; Public Service Corp. v. Watts, 150 So. 195.

Counsel contends that in the case at bar appellee assumed the risk of injury even if it grew out of the negligence of the master, because she was experienced, mature, knew of the dangers, had complained to the master of them, and no promise of repair had been made to her by the master. If there is anything clearer than that such contention is precluded him by the decisions of this court, I don't know what it could be.

Eastman, Gardiner & Co. v. Caldwell, 177 Miss. 869, 172 So. 126; Sec. 513, Code of 1930; Randolph Lbr. Co. v. Shaw, 164 So. 588.

The question of liability was rightfully submitted to the jury for its decision on instructions that counsel find no fault with. The finding of the jury on the facts are final, because the evidence supporting same is not unbelievable or unreasonable.

It is the opinion of the writer of this brief, "that the testimony repeated again and again in various forms about the long hours of labor, and the constant activity required in those hours" was competent testimony and was vital on the issues tried in this cause.

Miss. Cent. R. Co. v. Smith, 176 Miss. 306, 168 So. 604; Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; McIntyre v. Klein, 30 Miss. 361; 7 Encyc. of Evidence 408, 409; Wightman v. Providence, 1 Cliff. 524; Norfolk P. R. Co. v. Ormsby (Va.), 27 Gratt 455; Miss. Cent. R. Co. v. Lott, 118 Miss., 816, 80 So. 283; St. Louis-San Francisco Ry. Co. v. Bridges, 159 Miss. 268, 131 So. 100-101.

We respectfully submit that the jury trying the case could not intelligently pass on the question of whether appellee's earning capacity was impaired without knowing the work she was required to do, and the hours she usually worked.

The question asked Anders about the pressure he put on witnesses was asked in good faith. There was quite a bit of this testimony as to Anders' evidencing bias even against appellee's attorneys. Clearly it went to the interest and bias and feeling of Anders, and the record disclosed that he was a prejudiced and biased witness.

Argued orally by Ben F. Cameron, for appellant, and by M. V. B. Miller, for appellee.

OPINION [195 So. 684]

[189 Miss. 291] Griffith, J.

Appellee, who will hereinafter be referred to as the plaintiff, brought an action against the defendant for personal injuries alleged to have been received by plaintiff while working in defendant's cotton mill. Plaintiff's work was that of attending to a machine called a spinner frame. As a part of this machine and on each side thereof, there is an aligned row of clearer boards, 15 in number, 40 inches from the floor. The clearer boards were each about 22 inches long; about 3 I/2 inches wide, and are hollowed out on the lower side so as to be about I/2 inch thick; and their weight, each, is about one pound, six ounces.

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