Mississippi Power & Light Co. v. Sumner Gin Co

• Decision Date: 24 March 1930
• Docket Number: 27764
• Parties: MISSISSIPPI POWER & LIGHT CO. v. SUMNER GIN CO
• Court: Mississippi Supreme Court

127 So. 284

156 Miss. 830

MISSISSIPPI POWER & LIGHT CO. v. SUMNER GIN CO

No. 27764

Supreme Court of Mississippi

March 24, 1930

Division A

Suggestion of Error Overruled May 12, 1930.

APPEAL from circuit court of Tallahatchie county, Second district HON. GREEK L. RICE, Judge.

Action by the Sumner Gin Company against the Mississippi Power &amp Light Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed.

Shands, Elmore & Causey, of Cleveland, Green, Green & Potter, of Jackson, and Frank A. Reid and Samuel W. Murphy, both of New York City, for appellant.

No negligence of appellant was shown as proximate cause of injury.

Solomon v. Compress Co., 69 Miss. 319; Peitri v. R. R. Co., 119 So. 165; Billingsly v. R. R. Co., 100 Miss. 612, 56 So. 790.

The common experience of mankind is the criterion for determining what cautionary measures shall be taken to avoid injury to others.

Oktibbeha, etc., v. Page, 117 So. 836; Charnock v. R. R. Co., 194 U.S. 437, 48 L.Ed. 1059; Wabash, etc., R. R. Co., v. Lock, 14 N.E. 391; Pol Torts, 36; Beatty v. Railway Co., 58 Iowa 242, 12 N.W. 332; Railway Co. v. Stumps, 55 Ill. 367; 3 Sherman & Redfield on Negligence, 698; R. R. Co. v. Cromer, 101 Va. 667, 671, 44 S.E. 898; Norfolk Traction Co. v. Ellington, 108 Va. 345, 61 S.E. 779, 17 L.R.A. (N.S.), 117; Jones v. R. R. Co., 90 Miss. 550; Hatter v. I. C. R. R. Co., 69 Miss. 642, 13 So. 827; 16 L.R.A. (N.S.), 128; Fair Association v. R. R. Co., 70 Miss. 808, 15 So. 555; Y. & M. V. R. R. Co. v. Hughes, 94 Miss. 242.

It is not negligence if the defendant did that which was usual and customary under the circumstances.

J. M. Stevens, of Jackson, and R. L. Cannon, of Sumner, for appellee.

The duty of care is commensurate with the danger present in a situation or incident to an operation or instrumentality and a person engaging in act which the circumstances indicate may be dangerous must take all the care which prudence would suggest to avoid injury.

45 C. J. 696; Cobb v. Twitchell, 108 So. 186; Tyer v. Gulf, C. & S. F. Ry. Co., 78 So. 438.

In actions based on misfeasance or nonfeasance of duty, when the complaint avers the facts from which the duty arises, a general averment of negligence is sufficient, and the pleader is not required to specify the particular acts or omissions from which the conclusion of negligence is deducible.

M. & O. Ry. Co. v. George (Ala.), 10 So. 145; Armstrong v. Street Ry. Co. (Ala.), 26 So. 352; L. & N. R. Co. v. Jones (Fla.), 34 So. 246; Railroad Co. v. Stagg (Ala.), 72 So. 164; 29 Cyc. 570; Lykiardopoula v. Power Co. (La.), 53 So. 575.

Where a declaration charges willful negligence and the evidence shows simple negligence, there is no variance; the allegation as to wilfullness being regarded as surplusage.

A. & V. Ry. Co. v. Haines, 69 Miss. 160, 13 So. 246; Hollinshed v. R. R. Co., 99 Miss. 464, 55 So. 40; I. C. R. Co. v. Price, 72 Miss. 862, 18 So. 415.

Where there is a conflict as to facts showing negligence, or where the facts are conceded, but the inferences of negligence are still doubtful, depending on the general knowledge and experience of men, the question of negligence is for the jury.

So. Ry. Co. v. Floyd, 99 Miss. 519, 55 So. 287; M. C. R. Co. v. Mason, 51 Miss. 234; Gilchrist-Fordney Co. v. Price, 112 Miss. 20, 72 So. 836; A. & V. R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Laurel, etc., Co. v. M. & O. R. Co., 87 Miss. 675, 40 So. 259; Bell v. So. Ry. Co., 87 Miss. 234, 30 So. 821; Nesbitt v. City of Greenville, 69 Miss. 22, 10 So. 452; Davis v. L. N. O. & T. Ry. Co., 69 Miss. 136, 10 So. 450.

One generating or furnishing electricity or using dangerous machinery is under a high degree of care.

Williams v. City of Canton, 138 Miss. 661, 103 So. 811; Ala. Power Co. v. Farr (Ala.), 108 So. 373; Potera v. City of Brookhaven, 95 Miss. 774; Yazoo v. Burchett, 89 Miss. 700; Cumberland Tel. Co. v. Cosahan, 105 Miss. 615; Yates v. Bush Electric Light & Power Co. (La.), 4 So. 250; 29 Cyc. 460; Cumberland, etc., Co. v. Cosahan, 105 Miss. 615, 62 So. 824; Temple v. McComb, etc., Co., 89 Miss. 1, 42 So. 874; Guraudi v. Electric Imp. Co. (Cal.), 48 Am. St. 114; Allen v. Schultz (Wash.), 6 A.L.R. 676; Southall v. Smith (La.), 92 So. 402; Latta v. Ry. Co. (La.), 59 So. 250.

The doctrine of res ipsa loquitur applies to the facts of this case.

8 Ec. Ev. 891; 29 Cyc. 591, note 94; Griffin v. Manice (N.Y.), 82 Am. St. 630; 29 Cyc. 591; Snyder v. Electrical Co. (W. Va.) 64 Am. St. 922; Delahunt v. Tel. & Tel. Co. (Pa.), 114 Am. St. 958; Anderson v. Dry Goods Co. (Wash.), 126 Am. St. 870; A. & V. Ry. Co. v. Groome, 97 Miss. 201, 52 So. 703; Howser v. R. R. Co. (Md.), 45 Am St. 332; Gulfport, etc., Traction Co. v. Hicks, 116 Miss. 164, 76 So. 873; Feldman v. Railways Co. (Ill.), 6 A.L.R. 1291; McClure v. Gas Co. (Ill. ), 25 A.L.R. 250; Low v. Morris (N.J.), 46 A.L.R. 1108; Firebaugh v. Electric Co. (Wash.), 111 Am. St. 990, 113 Am. St. 1030--Case note; Lykiardopoula v. Power Co. (La.), 53 So. 575; Kleinman v. Laundry Co. (Minn.), 23 A.L.R. 479 and note 484; Chiles v. Ft. Smith, etc., Co. (Ark.), 8 A.L.R. 493; Judson v. Powder Co. (Cal.), 48 Am. St. 146; Klepsch v. Donald (Wash.), 31 Am. St. 936; 25 A.L.R. 293; Coffeyville Min. & Gas Co. v. Carter (1902), 65 Kan. 565, 70 P. 635, 12 Am. Neg. Rep. 594; Bradley v. Shreveport Gas, E. L. & P. Co. (1917), 142 La. 49, 76 So. 230; Peterson v. Tidewater Power Co. (1922), 183 N.C. 243, 111 S.E. 8; Williams v. City of Canton, 138 Miss. 661, 103 So. 11; Groome Case, 97 Miss.; Hicks Case, 116 Miss.; Palmer Brick Co. v. Chenall, 119 Ga. 837, 47 S.E. 329.

Argued orally by Garner W. Green, for appellant, and by J. Morgan Stevens, for appellee.

OPINION

McGowen, J.

On a declaration for damages for negligently setting fire to and burning the gin plant of appellee, the Sumner Gin Company, there was rendered against appellant, on the verdict of a jury, judgment for ten thousand, seven hundred thirty-three dollars and thirty-three cents, from which an appeal is prosecuted to this court.

The declaration is in three counts. The first count averred ownership of the gin plant by the appellee, the Sumner Gin Company, and a lease of its gin plant to the Mississippi Power & Light Company, the appellant, for the erection of a generator and the operation of appellant's electric light system, for the consideration of five dollars per day, by virtue of which the appellant installed its electric generator and fixtures in the gin plant of the appellee, thereby connecting its two plants, at Webb and Sumner, for the operation of an electric light system.

The first count charged negligence in overloading said generator and other machinery installed in appellee's gin plant by appellant, by attaching thereto its lighting apparatus for furnishing lights to the town of Webb, whereby the overloading of such generator and other machinery therein resulted in an explosion which set fire to and destroyed the gin plant, and also the use of defective machinery by the appellant. The second count, in short, charged the willful, improper, and negligent operation of appellant's plant at the time of the injury; and the third count charged, in general, negligence in the operation of the plant. The appellant filed pleas of the general issue to the several counts.

On the question of negligence, appellee's case rests upon the testimony of the witness Joseph McNaught, who was joined as a defendant with the Mississippi Power & Light Company, and S T. Ainsworth, the superintendent of the said company at Sumner. The fire occurred on the night of May 8, 1926. McNaught was night operator for the appellant company, and ran the lighting plants from six o'clock in the evening to six o'clock in the morning, having sole charge thereof and no assistants to aid him in the operation of same. The Sumner plant of appellant furnished electric current for the town of Webb when the plant there was not in operation, and the plant at Webb furnished electric current for the town of Webb on week days from six P. M. to nine forty-five P. M., on Saturdays continued running until eleven or eleven thirty P. M. The witness McNaught, upon going on duty at six P. M. on Saturday night of this fire, discovered very shortly thereafter, when oiling the bearing on the right-hand side of the generator, that it was "kinder warm." The generator in the gin plant rested on timbers laid on sills. The bearing with its journal box was five feet beneath a wooden ceiling; the journal box was of steel, holding about one-half gallon of oil, at the top of which was an opening four inches long and three-quarters wide for the intake of oil, and, when filled to its capacity, had a vacant space of six inches above the oil level. Escape of oil along the shaft was prevented by light washers, made of rubber or felt, attached on each end inside of the journal box. It was the custom of McNaught to oil the bearings once every three hours, but, having found this bearing warm when he went on duty, and still warmer a half hour later, it was oiled again. At seven o'clock still finding it heating up, he called the superintendent, Ainsworth, over the telephone, and informed him of the condition of the bearing, whereupon he was instructed by Ainsworth to oil it often and regularly. The Webb plant, on that night, was only running from six thirty P. M. to nine forty-five P. M., and McNaught requested Ainsworth to telephone the Webb plant to continue running longer that night than usual, which Ainsworth did. Thereafter McNaught continued oiling the bearing, though it kept getting hotter; his description of its condition being that it was so warm that "I was only able to hold my hand on it." At nine forty-five P. M. the Webb plant...