Latimer v. Dent

Decision Date18 January 1937
Docket Number32510
Citation177 Miss. 869,172 So. 126
CourtMississippi Supreme Court
PartiesLATIMER v. DENT

Division B

Suggestion Of Error Overruled, February 15, 1937.

APPEAL from the circuit court of Harrison county How. W. A. WHITE Judge.

Action by G. E. Latimer against J. R. Dent. Judgment for defendant and plaintiff appeals. Affirmed.

Affirmed.

Jo Drake Arrington, of Gulfport, for appellant.

The plaintiff contends he was entitled to a peremptory instruction because the testimony and the physical facts and circumstances, together with all reasonable and logical inferences therefrom, do not support a finding for the defendant; and a verdict for the defendant should not be allowed to stand.

McFadden v. Bucklev, 53 So. 351; National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91; Hardy v. Masonic Benevolent Assn., 103 Miss. 108, 60 So. 48; Elliot v. G. M. & N. R. Co., 145 Miss. 768, 111 So. 146.

The defendant was guilty of negligence as a matter of law.

Huff v. Bear Creek Mill Co., 77 So. 306, 116 Miss. 509.

Instruction No. 2 mentions abstractly only two counts in the plaintiff's declaration, whereas the declaration contains six counts. The instruction plainly tells the jury that the plaintiff was seeking to recover only for the defendant's failure to exercise reasonable care to provide him: (1) a reasonably safe place in which to work, and (2) reasonably safe machinery around which to work. The instruction is fatally erroneous under the authority of Thames v. Batson & Hatten Lbr. Co., 108 So. 181, 143 Miss. 5.

The fourth assignment of error is the granting of instruction No. 3 for the defendant. That instruction refers only to one count in the plaintiff's declaration and ignores all the others. It does not specifically tell the jury that it may find for the defendant as to one particular count, but states generally that "the jury may find for the defendant," without reference to the other counts.

Thames v. Batson & Hatten Lbr. Co., 108 So. 181, 143 Miss. 5; Lackey v. St. Louis & S. F. R. Co., 102 Miss. 339, 59 So. 97; Dent v. Mendenhall, 139 Miss. 271, 104 So. 82; J. C. Penney v. Morris, 173 Miss. 710, 163 So. 124; Cumberland Tel. & Tel. Co. v. Cosnahan, 10,5 Miss. 615, 62 So. 824; Y. & M. V. R. Co. v. Dyer, 102 Miss. 870, 59 So. 937.

An instruction which purports to deal with the case entirely, but in fact and in law, deals with only one aspect (or count or ground of issue) of it, is reversible error, as in excludes and cuts the plaintiff off from other issues.

When a verdict is against the overwhelming weight of the evidence, and when it is shown a party has not received a fair trial, or that justice has not been done it should be set aside and a new trial granted.

Fore v. I. C. R. R. Co., 172 Miss. 451, 160 So. 903; Columbus & G. R. Co. v. Buford, 116 So. 817; M. & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.

It is only too apparent that justice has not been done in this case.

White & Morse, of Gulfport, for appellee.

This court has held numbers of times, where the injuries to a servant are the proximate result of his own negligence, without any negligence on the part of the master, that the servant cannot recover.

Ovett Land & Lbr. Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Rose v. Pace, 144 Miss. 375, 109 So. 861.

Appellant complains that the court erred in granting the following instruction to the defendant: "The court charges the jury for the defendant that if you believe from the evidence that plaintiff was furnished with a sale place to work, and was injured as a result of placing himself in a dangerous place not called for by his duties, in order to assist a fellow employee, then plaintiff cannot recover and you must find for the defendant."

This instruction is based upon the issue made by plaintiff that defendant did not furnish plaintiff with a safe place to work.

Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154.

The eminent trial judge who conducted the trial of the cause in the court below, tried the case fairly and impartially, the matter was submitted to the...

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4 cases
  • Forbus v. Cobb Bros. Const. Co.
    • United States
    • United States State Supreme Court of Mississippi
    • 27 d1 Fevereiro d1 1939
    ...152 So. 281; Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Latimer v. Dent, 177 Miss. 869, 172 So. 126. When take into consideration the fact that no duty imposed on the decedent required him to get under the truck, and with abso......
  • J. W. Sanders Cotton Mill, Inc. v. Moody
    • United States
    • United States State Supreme Court of Mississippi
    • 6 d1 Maio d1 1940
  • Eastman, Gardiner & Co. v. Caldwell
    • United States
    • United States State Supreme Court of Mississippi
    • 18 d1 Janeiro d1 1937
  • Pearson v. Weaver, 43420
    • United States
    • United States State Supreme Court of Mississippi
    • 12 d1 Abril d1 1965
    ...that the finding of the trial judge is against the overwhelming weight of the evidence or that he was manifestly wrong. Latimer v. Dent, 177 Miss. 869, 172 So. 126 (1937); Miss. Power & Light Co. v. Tripp, 183 Miss. 225, 183 So. 514 (1938); Roberts v. Interstate Life and Acc. Ins. Co., 232 ......

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