McTighe, Hughey & McTighe v. Johnson

• Decision Date: 11 June 1917
• Docket Number: 19300
• Citation: 114 Miss. 862,75 So. 600
• Parties: MCTIGHE, HUGHEY & MCTIGHE v. JOHNSON
• Court: Mississippi Supreme Court

75 So. 600

114 Miss. 862

MCTIGHE, HUGHEY & MCTIGHE v. JOHNSON

No. 19300

Supreme Court of Mississippi

June 11, 1917

Division A

APPEAL from the circuit court of Copiah county, HON. J. B. HOLDEN Judge.

Suit by Mary Willie Johnson, by next friend, against McTighe, Hughey & McTighe. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

R. N Miller and H. J. Wilson, for appellant.

The universal rule seems to be that the fact that the same or another person for whom the defendant is responsible did a similar negligent act or showed similar negligent management is irrelevant and cannot be shown. Malton v. Nesbit, 1 I. C. & P. 70; Edwards v. Ottowa River Navigation Company, 39 U. C. Q. B. 264; Southern Bell Tel. & Tel. Co. v. Watts, 66 F. 461; Lake Erie & W. R. R. R. Co. v. Morain, 140 Ill. 117; Chicago, B. & Q. R. R. Co. v. Lee, 60 Ill. 501; Southern R. R. Co. v. Kendrick, 40 Miss. 374; Mississippi Central R. R. Co. v. Miller, 40 Miss. 45; Dalton v. Chicago R. I. & P. R. Co., 114 La. 257; Chicago R. I. & P. R. R. Co. v. Durant, 56 Kan. 380; Hutchinson v. L. & N. R. R., 21 Ky. L. 733; Parker v. Portland Publishing Co., 69 Me. 173; Clark v. Smith, 72 Vt. 138; Christenesen v. Union Trunk Line, 6 Wash. 75.

Under the declaration appellee was confined to the negligent leaving of the cap in the house where the accident occurred. The locus in quo was fixed by the declaration. The instruction referred to was entirely erroneous under the proof in the case. Under it the jury were permitted to consider the leaving of dynamite and caps at other places as acts of negligence of appellants. It is easy to understand how counsel for appellee would argue to the jury that appellants were grossly careless and negligent in the handling of explosives and would recite in most impressive manner the finding of dynamite and caps up and down the public roads in that county. This unquestionably was sufficient to overbalance the good judgment of the average juror and no doubt contributed very largely to the verdict that was rendered.

In the next place, we insist that the evidence was insufficient to fasten liability on the defendants and the peremptory instruction asked by them should have been granted by the court. The declaration charged that the defendants stored dynamite and dynamite caps in, about and under the house where the injury occurred. The proof offered by the plaintiff which, taken as a whole, is of a very doubtful and uncertain character, is directed entirely towards the placing of dynamite and caps in the house. The most that can be said of it in favor of plaintiff is that some two or three witnesses saw a box containing sticks of dynamite and a small box of caps setting inside the front room of the house. Another witness for the plaintiff testified that he saw Gilbert McDonald, an employee of the defendants, go into the house for dynamite and come out, but he did not say that he saw him carry any dynamite into the house or bring any out. Another witness testified that on one occasion he saw a box of dynamite caps lying at the edge of the front gallery and two sticks of dynamite in the door; he returned later and both were gone. As to who placed the sticks of dynamite in the door or left the box of caps exposed under the edge of the gallery is not shown.

We beg to call the court's attention to several well-considered cases which are almost identical with the case at bar. Conley v. Ennis' Adm'r., 170 Ky. 135; Birmbaum v. Philadelphia, etc., R. R. Co., 249 Pa. 238; Garalka v. Worth Bros. Co., 245 Pa. 467.

It cannot be said that the placing of dynamite caps inside the house by the defendants' agents was the proximate cause of the injury complained of, because there is no connection shown between the caps that were left inside of the house and the caps that were found secreted on the sill under the house. Negligence cannot be inferred; it must be proven by competent testimony. There is no causal connection between any act of the defendants agents and the injury that was inflicted upon the plaintiff. It was therefore manifestly error that this cause should have been submitted to the jury.

We submit, therefore, upon this proposition alone this court should reverse this cause.

R. H. Thompson, for appellee.

The first position of adverse counsel is a claim that the trial court erred in permitting the plaintiff to show several acts of negligence by defendants other than those specifically charged in the declaration. This position is based upon an unwarranted assumption. It proceeds upon the idea that the declaration can be maintained only by proof that defendants designedly and intentionally stored the explosives in the house where plaintiff was injured. The truth is that in legal contemplation, defendants placed the explosives in the house if they negligently allowed them to be placed there. And plaintiff was properly allowed to prove by circumstances, or otherwise, that the defendants negligently failed to take proper cautions in the management and control of its explosives and as a consequence parts of them were wrongfully stored in the house.

The court below did not err in overruling appellant's motion to exclude all the testimony showing the finding of dynamite and dynamite caps at places other than the house where plaintiff was injured. To have excluded this testimony would have been to adjudge that plaintiff could not prove her case by circumstantial evidence.

The seventh instruction given for defendants informed the jury of the two issues above mentioned and told them not to find for the plaintiff on the ground that defendants had negligently exposed dynamite, etc., at places other than the one where plaintiff was injured, even if the explosives negligently, left elsewhere were carried by other persons to the house where plaintiff's hand was blown off.

While this instruction was unwarrantedly liberal for defendants, it held the jury to the real issues in the case and treated the testimony complained of as being but circumstances to be considered in finding one of the real issues in the case. Defendants surely were not entitled to have this testimony excluded or treated more to their advantage.

The case of Malton v. Nesbit, 1 C. & P. 70, and the other cases cited by appellants' attorney in his argument on this point are easily distinguishable from this one.

In this case, under defendant's seventh instruction, the jury found as a fact that the defendants were "negligent in the handling of the caps and in exposing them near the place where the injury occurred," since they were required by the instruction to so find, before they could return a verdict for plaintiff; and this finding renders entirely harmless, so far as any other view of the case is concerned, all testimony of which appellants complain. The criticism passed by their attorney upon the third in-instruction shows appellants' conception of this case. They conceive that their motion to exclude testimony should have been sustained, and that the alleged injury done their defense is emphasized by plaintiff's said instruction. This conception and an insistence on it by implication, admit that the testimony was inadmissible alone because the defendants would not, as they claim, have been liable, no matter how negligently they may have exposed the explosives, if the same were found, where exposed, by Johnson's children and carried to the place of injury. Appellants' conception of the case is a faulty one. If defendants negligently left the explosives exposed where they were likely to be found by children no matter where, certainly if so left in the vicinity of Johnson's house, and they were found by his children and the explosion and consequent injury of plaintiff resulted from her handling one of the caps, appellants are liable, whether the explosion occurred where the explosives were found, or where the children carried them, whether one foot or a greater distance away from the place where found. The basis of appellants' complaint of the testimony being fallacious, their objection thereto is without merit.

The cases cited by counsel for appellants near the end of his brief, Conley v. Ennis' Administrator, 170 Ky. 125; Birmbaum v. Philadelphia R. Co., 249 Pa. 236; and Gralka v. Worth Bros. Co., 245 Pa. 467, are so very different from the case at bar as to be almost wholly, if not entirely, inapplicable to this cause.

OPINION

STEVENS, J.

Appellants were defendants in the court below in an action for damages instituted by Mary Willie Johnson, a minor, by Amzi Johnson, her father and next friend. Appellants, as contractor, entered into a contract with the proper authorities of Attala county to construct and improve certain highways, one of which is referred to as the "Natchez Trace" Road. It appears that they were also awarded the contract to construct the Greensboro Road and the Louisville Road, but the actual work of improving the last-named road, and also a portion of the Natchez Trace, south, was done by persons employed by appellants under an arrangement which appellants contend characterizes them as subcontractors. It appears that the Natchez Trace Road and the Greensboro Road were at some...