National Box Co. v. Bradley

• Decision Date: 22 October 1934
• Docket Number: 31246
• Citation: 171 Miss. 15,157 So. 91
• Court: Mississippi Supreme Court
• Parties: NATIONAL BOX CO. v. BRADLEY

154 So. 724

157 So. 91, 171 Miss. 15

NATIONAL BOX CO. v. BRADLEY

No. 31246

Supreme Court of Mississippi

October 22, 1934

Division B

May 14 1934

APPEAL from circuit court of Adams county HON. G. H. BRANDON Special Judge.

Action by Charlie Bradley against the National Box Company. From a judgment in favor of the plaintiff, the defendant appeals. Judgment affirmed.

On suggestion of error and petition to correct record. Suggestion of error overruled.

For former opinion, see 154 So. 724.

Affirmed. Suggestion of error overruled.

Whittington & Brown, of Natchez, for appellant.

If mistaken in our contention that the lower court should have granted a peremptory instruction, we confidently say to this court that we ought not to be mistaken in our contention that we were entitled to have the motion for a new trial sustained under the holding of this court in cases where the preponderance of the evidence is plainly and conclusively against the plaintiff.

Mobile & Ohio Ry. Co. et al. v. Johnson, 141 So. 581; Mobile & Ohio. Ry. Co. v. Bennett, 90 So. 113.

The lower court erred in permitting the jury to view the place and scene of accident. Section 2066, Mississippi Code of 1930, provides for such action by the court, but it is the duty of the court before allowing the jury to view the premises to enter an order providing for such view or inspection and if such order is entered the whole organized court, consisting of the judge, jury, clerk, sheriff and the necessary number of deputy sheriffs, shall proceed in a body to the place.

In addition to other grounds, there was a special judge trying the case, and the order allowing the view is signed only by the special judge.

Section 737, Mississippi Code of 1930; Grinsteau v. Buckley, 32 Miss. 148; Rankin v. Johnson, 56 Miss. 125.

The statute requires that the clerk and the sheriff of the court shall attend with the jury.

Jones v. State, 141 Miss. 894, 107 So. 8.

It was an abuse of discretion in the court to authorize the jury to view the place because of the material changes that had been made and because the situation was entirely different, the machinery entirely different, and the view could throw no light whatsoever upon the questions involved.

38 Cyc. 313.

There may have been a set screw in the shaft or in the collar on the shaft by which or near which the plaintiff worked and he may have had his clothes caught in such set screw, still that did not show negligence on the part of the defendant.

Seifferman v. Leach, 138 So. 563.

There is shown by the record objection in open court to the trial judge's action in allowing the jury to view the place made at the very time that the court sustained the motion to have the jury view the place.

With all due deference to the trial judge, he was simply and wholly in error when he made the statement on the motion for a new trial as he recalled it some several days after the trial that when he sustained plaintiff's motion for review there was no further objection made to such at that time by the defendant but that the attorney for the defendant stated privately to the court that he expected to renew his objection.

We do not understand that a trial judge can impeach the stenographer's notes or change the stenographer's notes or the record of the proceedings before him that are made by a stenographer. And yet for the court to accept the statement made by the trial judge on the motion for a new trial certainly is an impeachment of the stenographer's notes and the record made by the stenographer of what happened in open court in the trial of the case.

We concede that the order need not have been entered on the minutes before the jury viewed the place. The point we were making was that an order had to be made and that such order could only be made by the regular judge and not by the special judge.

Grinsteau v. Buckley, 32 Miss. 148; Rankin County Savings Bank v. Johnson, 56 Miss. 125.

R. L. Corban, Jr., of Fayette, and Engle & Laub, of Natchez, for appellee.

This case was essentially a jury case in that there was a dispute in the evidence as to the construction and height of the machine and the manner in which the appellee was injured. The jury saw fit to believe the appellee.

Guesselich v. Nunez, La. Appeals 1924 Orleans 8659; Marcotte v. Montana, 121 So. 213, 9 La. App. 561; Lusco v. Corkern, 126 So. 540, 12 La. App. 557; Bates v. Strickland, 103 So. 432, 139 Miss. 636; Powell v. Tomlinson, 129 Miss. 658, 92 So. 583; Powell v. Tomlinson, 129 Miss. 354, 92 So. 226.

The jury was not taken to the, place of the injury or where the machinery was on plaintiff's motion, but was there taken on the jury's own request to the court.

The ruling of the court permitting the jury to, view the scene was "that no testimony be taken at said view and until the jury again is in the box in the courthouse." This was ordered on the day of the trial and at the trial which was the 5th day of December, 1933, but was not placed upon the minutes until the 7th day of December, 1933, then nunc pro tunc.

There was no necessity for the clerk to be present, no testimony being taken at the plant of the National Box Company.

Section 2066, Code of 1930.

When the evidence in behalf of the plaintiff is sufficient in law to establish legal right of the plaintiff in issue and is not inconsistent with the admitted physical facts or with the natural laws or common knowledge, and, so viewed the plaintiff's testimony taken alone is such that reasonable men, acting reasonably, could believe that testimony and prudently act upon it, then a peremptory instruction for the defendant must not be given.

Mobile & Ohio Ry. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Teche Lines, Inc. v. Passavanti, 140 So. 677, 163 Miss. 93; Teche Lines, Inc. v. Heatherly, 140 So. 680.

The court, on appeal, must accept as true the statements of the trial court of its recollection of the proceeding sought to be reviewed.

Gurley v. State, 101 Miss. 190, 57 So. 565; Turner v. State, 121 Miss. 68, 83 So. 404; Humphrey et al. v. Crorow Hdw. Co., 163 Miss. 490, 140 So. 690.

The only thing seen at the place of accident which was not there at the time of the injury was the larger machine. To see this would be harmless, the jury knowing and having had pointed out to them the smaller machine in the yard, which had inflicted the injury.

64 C. J., Trial, p. 90; Guinan v. Famous Players-Lasky Corp., 167 N.E. 235, 245.

There was no abuse of discretion in permitting the view.

Polebitske et al. v. John Week Lbr. Co., 173 Wis. 509, 181 N.W. 730; Northwestern Mutual Life Ins. Co. v. Sun Insurance Office et al., 85 Minn. 65, 88 N.W. 272; 22 C. J., Evidence, p. 767.

In the instant case the special judge had been agreed upon by the parties litigant to act in this case, and the principles of section 165 of the Constitution govern in such cases.

Canal Bank & Trust Co. v. Brewer, 147 Miss. 885, 912, 113 So. 552, 114 So. 127.

It will be seen from these authorities that a special judge appointed to try a special cause has and can exercise all the powers vested in the regular judge.

Hall Commission Company v. Crook, 87 Miss. 445, 40 So. 20; Kelly v. State, 79 Miss. 168, 30 So. 49; Upton v. Adcock, 152 Miss. 459, 119 So. 190; Hamblett v. Jones, 118 So. 711; Canal Bank & Trust Co. v. Brewer, 147 Miss. 885, 113 So. 552, 114 So. 127.

Argued orally by L. A. Whittington, for appellant, and by S. B. Laub, for appellee.

Ethridge, P. J., Griffith, J., delivered the opinion of the court on suggestion of error.

OPINION

Ethridge, P. J.

Charlie Bradley was employed by the appellant, National Box Company, and suffered a serious injury by having his clothing caught on a part of the machinery, dragging him onto the machine, and inflicting the injury. His theory of how the injury occurred was that there was a set screw protruding from one inch to one inch and one-half, and that the apron which he wore in his employment caught on said set screw and pulled him onto the rapidly revolving shaft, resulting in his injuries. He testified that the shaft was about two and one-half feet above the floor, and that this set screw should have been either covered or sunk, or a different type of set screw used, and that it was customary in business of this kind to have such set screws sunk into the shafting, or covered, or fixed in such manner that employees working around such screw would not be caught in the revolving shaft, and that he had worked at a number of places where covered or sunken screws were used, and that was the usual and proper way for such machinery to be operated. He went to work on the morning of the injury at seven o'clock, and was injured at fifteen minutes past seven o'clock.

Witnesses for the appellant testified and the appellant pleaded that the injury was occasioned by the appellee standing upon a block by the machinery with his hands lifted up for another employee above him to trim his finger nails, and that the appellee was not, at the time of the injury, employed in and about his master's business. It was also the theory of the appellant that the machinery was four and one-half feet above the floor, breast high to the employees.

The appellee's employment was to assist in handling and fixing cuts of wood from which veneer was to be made over and onto the knives which cut strips from logs; these logs being cut into lengths of approximately three feet.

There was testimony to the effect that the nurse employed by the appellant to give first aid to injured employees rendered first aid to the appellee, called a physician, and took appellee's statement, in which statement she claimed that he stated he was standing on a block leaning over the machinery...