Newton Oil Mill v. Spencer

• Decision Date: 04 February 1918
• Docket Number: 19916
• Citation: 116 Miss. 568,77 So. 605
• Court: Mississippi Supreme Court
• Parties: NEWTON OIL MILL v. SPENCER

77 So. 605

116 Miss. 568

NEWTON OIL MILL v. SPENCER

No. 19916

Supreme Court of Mississippi

February 4, 1918

Division B

APPEAL from the circuit court of Newton county, HON. J. D. CAR Judge.

Suit by Alonzo Spencer against the Newton Oil Mill. From a judgment for plaintiff, defendant appeals.

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

Judgment affirmed.

Byrd &amp Byrd, for appellants.

Instruction number one is clearly and manifestly wrong. We cannot understand how counsel or the court got it into their minds that a door placed in the floor as this one was was inherently dangerous. We do not understand how an inanimate thing can be inherently dangerous, and for that reason we are forced to the conclusion that the instruction is erroneous. It is erroneous because the court tells the jury that as a matter of fact the plaintiff did fall through the door; and further tells them that, if he did fall through the door, then they must find for plaintiff. Now we do not think, under the facts of this case, that the jury was compelled to find for the plaintiff. This instruction, in effect, is a peremptory instruction.

The second instruction given for plaintiff which is assigned as error was clearly wrong in that it placed the burden upon defendant to show by a preponderance of the evidence that the plaintiff had knowledge of the condition of the door; and it is further erroneous because it assumes that as a matter of fact plaintiff fell through the door, which is not borne out by the proof. The proof is that he stepped upon the door and fell, and the door flew up and hit him in the side, and that was the cause of his injuries, and not that he went through the floor. The falling through the door did not cause his injuries; in fact he didn't fall through, but fell across, and the corner of the door struck him in the side.

The court refused to permit Dr. Cooper to testify as to plaintiff's injuries. Cooper was the physician who first attended plaintiff and who visited him some four or five times, and knew all about, or more than any one else, the extent of the injuries, if any, sustained by the plaintiff. Cooper was the company's physician. We are aware of the rule that a physician cannot testify to matters and things ascertained or learned while attending upon a patient, if the patient objects. But under the peculiar circumstances of this case, we think the law would permit Cooper to have testified. The court will observe that Cooper attended this party as a physician from a few minutes after he was hurt until he was able to get out and about. After he had gotten up, and able to travel, he went over to Lawrence and saw Dr. Monroe, who made a casual examination of him. Plaintiff introduced Dr. Monroe who undertook to tell the condition and the extent of plaintiff's injuries. It is clear from his testimony that he could tell nothing about it and the substance of what he said is what the plaintiff told him. It seems to us that it would be just and fair that all the facts should be revealed to the jury. Cooper, who knew all the facts, was not permitted to testify. Monroe, who did not know the facts, and could not have known them, was permitted to testify. Both being physicians, one attended him a few minutes after the accident, and until he was practically well; and the other saw him some six weeks after the injury occurred and after he was able to travel.

For the foregoing reasons, we respectfully submit that this case should be reversed.

J. D. Jones and S. J. McLaurin, for appellee.

Appellant complains of two instructions of the court and of the fact that Dr. Cooper was not allowed to testify. The first instruction complained of is that the court instructed the jury that the trapdoor through which the appellee fell was inherently dangerous, the "inherently" seeming to be the part of the instruction complained of. Webster gives as his definition of the word "existing in something" or naturally pertaining to something." Under this definition we submit the door was inherently dangerous as was testified to both by the witnesses for appellant and appellee and as stated in appellant's brief.

The next instruction complained of is that which instructed the jury that the burden of proof of contributory negligence was upon the appellant. In an action for personal injuries the burden of proof of contributory negligence is on the defendant. Sims v. Forbes, 86 Miss. 412; Mississippi Central R. R. Co. v. Hardy, 88 Miss. 732. Dr. Cooper was a physician called in to see appellee when injured and therefore could not testify over his objection. Railroad Company v. Messina, 109 Miss. 143.

ETHRIDGE, J. STEVENS, J., specially concurring.

OPINION

ETHRIDGE, J.

Alonzo Spencer sued the Newton Oil Mill for personal injuries received by falling through a trapdoor in a platform of the plant of the Newton Oil Mill, alleging that the said trapdoor was...