Kincade & Lofton v. Stephens

• Decision Date: 12 February 1951
• Docket Number: No. 37664,37664
• Citation: 50 So.2d 587
• Court: Mississippi Supreme Court
• Parties: KINCADE & LOFTON et al. v. STEPHENS.

Page 587

50 So.2d 587

KINCADE & LOFTON et al. v. STEPHENS.

No. 37664.

Supreme Court of Mississippi, in Banc.

Feb. 12, 1951.

Wall & Allen, Brookhaven, for appellants.

Cohn, Hobbs & Hobbs, Brookhaven, for appellee.

ROBERDS, Justice.

On June 13, 1946, appellants, as partners, were engaged in the business of constructing electric power lines. Stephens was employed by them in that work. On that day he fell from a pole and received personal injuries. In this action he seeks a money judgment for such injuries. He obtained a personal judgment for $18,000, from which defendants appealed.

Appellants urge here (1) that they were entitled to a peremptory instruction on the question of liability; (2) that the lower court erred in granting to the plaintiff, and in refusing to grant to the defendants, certain specified instructions; and (3) the amount of the verdict is grossly excessive.

We will consider and decide the contentions in the order stated.

As to liability, plaintiff alleged defendants were negligent in (a) not furnishing to him a reasonably safe place in which to work; (b) in failing to promulgate and adopt rules as to the manner of doing the work; and (c) in causing another servant to tighten and jerk a guy wire which was attached to the pole on which plaintiff was doing his work, thereby throwing plaintiff to the ground, resulting in his injury. We are of the opinion the verdict of liability is sustainable upon the third ground, and, therefore, do not pass upon the other two contentions.

As to the sustainable ground of liability, there is evidence from which the jury could reasonably have found that the plaintiff, at the time of the injury, was about his duties, under direction of the foreman, in preparing a pole for the stringing of electric wires thereon. The pole was freshly sunk eight feet into, and extended thirty-seven feet above, the ground. It had two guy wires attached thereto near the top, anchored to the ground some twenty feet from the base thereof. Plaintiff began his work near the top of the pole. He was wearing the usual belt and leg hooks, or spurs, used in such work. There was no defect in these appliances. However, in the course of his duties plaintiff had to descend the pole as he performed his work. In such descent, it was necessary that he unbuckle his belt to pass the attached guy wires. This he did. After that was done, it was necessary that he descend by inserting the spurs into, and locking his hands around, the pole, releasing one spur at a time as he descended, resting his weight in the meantime on the inserted spur. As he was doing this, Mr. Redmond, foreman in charge of the work, and with knowledge of the position of peril of plaintiff, instructed Davis, another employee, to tighten the top guy wire. This Davis did. The tightening process took place at the anchor. The wire was given a rather sudden, or hard, pull, causing the pole to swerve towards the anchor, striking Stephens on the side of his head, causing him to fall to the ground. Davis testified he tightened the wire in the usual manner and as directed by Redmond.

But, appellants strongly urge there is no creditable evidence that the pole struck plaintiff and caused him to fall. They say these facts, if they are facts, rest upon the testimony of plaintiff and the witness Davis and that their testimony, properly weighted and analyzed, is vague, indefinite and contradictory, and does not sustain these conclusions.

As to the testimony of Stephens, the plaintiff: It is pointed out that in one part of his testimony he said his left hook was inserted into the pole; he had released the right; that he had his arms around the pole and was looking downward in a cautious effort to again insert the right spur into the pole. On cross examination, this witness said:

'Q. And then you fixed your left foot with your spur into the pole? A. Yes sir.

'Q. And as you undertook to step down and fasten your right foot into the pole is when you fell, is that right? A. Yes, sir.'

From this, and some other answers of similar import, picked here and there through his testimony, it is argued that the testimony of this witness establishes that he fell, not because he was hit by the pole, but because the hook slipped from the pole. On the other hand, he definitely stated a number of times the pole did hit the side of his head knocking him to the ground. He said his left hook was firmly imbedded into the pole.

'Q. State whether or not your left hook was in the side of the pole at time you commenced to fall. A. Yes, sir, it was in the pole. I had driven it in there good and tight.'

He was asked 'When the pole struck which side of your head was hit? A. It hit the left side of my head.

'Q. What was the effect of the pole on your head at the time it was hit? A. Well, it blanked me out. Busted this eye open; skinned all my face here (indicating) and bruised me up.' Other uncontradicted evidence showed the side of his head was badly bruised and was bleeding freely after the fall. It is not shown his head hit the ground; he landed on the back of his heels, and fell backwards, so it is reasoned the only thing which could have caused the wound on the side of the head was the pole. The scar was exhibited to the jury at the time of the trial. In a number of other places in his testimony, he referred to being struck on the side of the head by the pole.

But this witness signed a statement July 25, after this accident on June 16, describing, to some extent, the manner in which it occurred. Appellant argues this contradicted his testimony as given on the stand and rendered the witness unworthy of belief. In this statement, he said 'I was fixing to change my position and go down the pole and I had unhooked my safety belt and started to move when in moving my left hook cut loose from the pole, and I slipped and struck my head against the pole, and this knocked me out a second, and I started to fall head foremost, after tilting backwards, I managed to change my position and landed almost straight up, or at a backward angle. I struck on my heels and fell backwards, striking my back on the ground * * *'. In this same statement, he said he did not know what caused his hook to slip. On the stand, he said this statement did not constitute the full facts; that he did not read it at the time it was signed that he was in bed in a cast, '* * * my back was arched up high and my feet and head was lower. My head reared way back'; that in that position he could not read the statement 'Hardly at all'; that Mr. Kincade, one of the partner-defendants, came to him and requested him to sign it, saying '* * * it is just a statement, it wouldn't amount to nothing; go ahead and sign it'. He said his testimony on the stand was accurate and should prevail over any contradiction in his statement. Mr. Kincade did not testify.

Now as to Davis: It was not denied that he was directed to tighten the guy wire and he did so in the manner directed. Redmond, the foreman, did not testify; neither did any of the several other employees who were working about this job. Davis said it was usual to give a signal, under such circumstances, before the guy wire was tightened, but none was given on this occasion. His account as a witness as to how the accident happened is as follows:

'Q. What did you do when you were directed by Fleet Redmond, superintendent, to pull that guy? A. He was standing right under the pole and he told me to go and pull. When he told me to pull I immediately walked and caught hold of the guy and gave it a jerk as you have to do to rock the pole, and when I jerked the guy I heard Sidney Stephens holler. When a lineman hollers off the pole most of the time he has dropped something, hammer or wrench or whatever he has on him. When he hollered I got out of the way. As I was getting out of the way I heard him hit the ground. I run over there and Fleet Redmond, the superintendent, was already over there and had his belt off. There was blood all over his eyes, and I came on into the hospital with him at McComb.'

This witness also signed a statement July 25, 1946. In this he said: '* * * Stephens was working near the top of a 45 foot pole, putting in some eye bolts. I was on the ground about 25 feet away from the pole, and I heard him holler, and I saw him after he hit the ground. I don't know what caused him to fall. I came to McComb in the car with Stephens to the hospital. Mr. Redmond rented a car at Ruth and the owner drove the car. The accident happened around two o'clock in the afternoon. I think Stephens was changing his position up on the pole. There was no one else on the pole with Stephens when he fell. Mr. Fleet Redmond is the Supt. and he was there near the foot of the pole when the accident happened.'

It will be noted this statement does not say whether the witness did, or did not, pull the guy wire. It says nothing about that. However, his statement on the stand that he did do it and the method used, and that he did it at the command of Redmond, is not denied. A number of persons, including Redmond, were in position to deny that if it were not true. Defendants introduced no testimony other than the two ex parte statements of Stephens and Davis. Also, it will be noted that in his statement Davis says he did not know what caused Stephens to fall. He did not as a witness specifically say he knew. He said as soon as he pulled the wire he heard Stephens 'holler.' The record discloses this witness was the plaintiff in a suit then pending against someone other than the defendants to this action, presumably brought for personal injuries, although this is not clear.

Frankness compels us to say that the contradictory statements of these two witnesses, and all the surrounding circumstances, greatly weaken the force and effect of their testimony as given on the stand. But the question is whether the trial court should have granted a peremptory instruction on...