Newton v. Homochitto Lumber Co.

• Decision Date: 04 January 1932
• Docket Number: 29524
• Citation: 138 So. 564,162 Miss. 20
• Court: Mississippi Supreme Court
• Parties: NEWTON v. HOMOCHITTO LUMBER CO

138 So. 564

162 Miss. 20

NEWTON v. HOMOCHITTO LUMBER CO

No. 29524

Supreme Court of Mississippi

January 4, 1932

Division B

1 TRIAL.

Where evidence supporting verdict is against weight of evidence trial judge may grant new trial, but cannot direct verdict for adverse party (Code 1930, section 592).

2 TRIAL.

Court may direct verdict for one party only when evidence favorable to other, conceding it is true, discloses no legal right In him or fails to maintain issue in his favor.

3. TRIAL.

Court may direct verdict for defendant only when plaintiff's proof is so unreasonable and contradictory that it cannot be reasonably accepted as true.

4. TRIAL.

Wherever reasonable men may differ regarding which party testified to truth, cause must be submitted to jury.

5. TRIAL.

Determination of questions of veracity is jury's province.

6. TRIAL.

That plaintiff may be contradicted by other witnesses and by circumstances testified to by witnesses does not warrant court's taking case from jury.

7. MASTER AND SERVANT.

In action for injuries sustained by employee who, while checking materials on railroad car, was caused to fall when car was moved, plaintiff's evidence held sufficient to make case for jury.

HON. R. L. CARBON, Judge.

APPEAL from circuit court of Franklin county HON. R. L. CARBON, Judge.

Action by Amos Newton against the Homochitto Lumber Company. From a judgment dismissing the action, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Hollis McGehee, J. W. Cassedy, Jr., of Brookhaven, and Currie & Currie, of Hattiesburg, for appellant.

A peremptory instruction is proper only where all of the facts in evidence taken as true, with every just inference from them fail to maintain the issue.

Swan v. Liverpool, London & Globe Ins. Co., 52 Miss. 704; Whiting v. Cook, 53 Miss. 555; Carson v. Leathers, 57 Miss. 650; Lowenstein v. Powell, 68 Miss. 73; Nesbit v. Greenville, 69 Miss. 22; Bell v. Southern Railroad Company, 87 Miss. 234, 30 So. 821.

The degree of proof necessary to entitle a party to a peremptory instruction is very much greater than that necessary to entitle him to the verdict of a jury.

Ala. Great So. R. R. Co. v. Daniel, 108 Miss. 358, 66 So. 730.

These close questions of negligence vel non can only be determined safely and righteously by the juries of the country. A standard of conduct constituting negligence, or due care, in the numerous affairs of life, cannot be safely established from the bench; but such questions must be left to the logic and reasoning of the laymen who compose the juries, taken from all the walks of life, and who are familiar with ordinary human affairs and general conditions of every day life.

Yazoo & Mississippi Valley Railroad Company v. Williams, 74 So. 835.

All questions of negligence and contributory negligence shall be for the jury to determine.

Section 512, Mississippi Code 1930.

The determination of the facts is for the jury.

Cantrell v. Lusch, 113 Miss. 137, 73 So. 885; Sackler v. Slade, 148 Miss. 575, 114 So. 396.

Where there is substantial evidence tending to establish plaintiff's case, verdict may not be directed for defendant.

Haynes-Walker Lumber Company v. Hankins, 141 Miss. 55, 105 So. 858.

Where the evidence is conflicting on an issue, it is proper to present it to the jury.

Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 811; Birchett v. Hundermark, 145 Miss. 683, 110 So. 237; Winnegar v. Southwestern Company, 120 Miss. 675, 83 So. 3; Rogers v. Whitehead, 127 Miss. 21, 89 So. 779; Buie v. Clay, 127 Miss. 719, 90 So. 446.

Jury are sole judges of credibility of witnesses and weight to be given evidence.

Heming v. Rawlings, 144 Miss. 643, 110 So. 118.

Whittington & Brown, of Meadville, for appellee.

A verdict may be properly directed for either party where a contrary verdict would not be allowed to stand.

Wooten v. Mobile & Ohio Railroad, 89 Miss. 322.

On motion therefor, a verdict should be directed where the evidence is insufficient to sustain a verdict different from that which is asked to be directed.

Town of Flora v. American Express Co., 92 Miss. 66.

It is proper to grant a peremptory instruction for either party where the evidence justifies it.

Payne v. Stevens, 125 Miss. 582.

It is only where the testimony offered is of such conclusive character as would compel the court in the exercise of sound legal discretion, to set aside a verdict returned in opposition to such testimony, that a binding instruction to the jury should be given.

Anderson v. Tel. & Tel. Co., 38 So. 786, 86 Miss. 311.

The court should not take the case from the jury unless, as a matter of law, no recovery can be had upon any view which can be properly taken of the evidence.

Farmer v. Cumberland Tel & Tel. Co., 38 So. 775, 86 Miss. 55.

The evidence is not conflicting so as to require submission to the jury, merely because a discredited witness disputes some of the established facts.

Hardy v. Masonic Ben. Asso., 60 So. 48, 103 Miss. 108.

OPINION

Ethridge, P. J.

The appellant was plaintiff in the court below and sued the appellee for personal injuries. There were numerous counts in the declaration. The first count alleged that the plaintiff on and prior to the 21st day of August, 1929, was in the employ of the defendant, having charge of certain employees, that defendant also had a woods superintendent who was superior in authority to the plaintiff and in whose charge the defendant had placed all of the operations of its railroad work in connection with building a railroad and the movement of men and material to and from their work, and that the superintendent at all times acted within the scope of his employment, and that the plaintiff acted within the scope of his employment, under the direction and control of the superintendent aforesaid.

It was then alleged:

"Plaintiff shows that on the aforesaid date that the labors and duties of the plaintiff required of him by the defendant made it necessary for him to be on and around and to work on and around a train consisting of one of said engines and a number of cars and the plaintiff alleges that he was at the time and place of the injury herein complained of upon said train on one of the cars therein engaged under the direct orders and instructions of his said superior in checking up the tools, material and other objects on said car and that it was the duty of the engineer in charge of and operating said engine to keep said engine, cars and train still and not to move the same without warning or notice to the plaintiff while the plaintiff was so engaged. And he alleges that there was great danger of his being thrown or caused to fall therefrom while engaged in said work if said engine and train or car should be moved without warning or notice to him and he alleges that the defendant and its engineer in charge of and operating said engine, each and both knew this or by the exercise of ordinary care and caution could and ought to have known it. The plaintiff alleges that the engineer then and there in charge of and operating said engine cars and train, did negligently and in a grossly negligent manner when he knew or by the exercise of ordinary care and caution could and ought to have known that the plaintiff was on said car engaged in checking the tools and materials, thereon under the order of his said superior as aforesaid in a position where there was great danger that he would be thrown or caused to fall from said car and be injured or killed if the same should be moved without warning or notice to him, suddenly moved said engine, cars and train without any warning or notice whatever to the plaintiff as a proximate and direct result of which the plaintiff was suddenly and unexpectedly hurled and thrown from said car onto the ground and as a proximate and direct result of which the plaintiff then and there received and sustained the injuries herein complained of.

"The plaintiff alleges that when he was thrown or caused to fall from said car in the manner aforesaid, he fell on his back with such force down a steep embankment that it caused him to receive a fractured skull and caused him to receive a fracture of his back bone and caused several of the joints in his back bone to be jammed together, all of which said injuries were the direct and proximate result of the negligence herein complained of.

"Plaintiff will show that as a result of said injuries that he was caused to suffer the most excruciating pain and agony and suffering and that in the future, plaintiff charges that he will continue to suffer.

"Plaintiff will show that prior to this injury he was strong, healthy and able-bodied and capable of and did earn the sum of five dollars per day, but that on account of said injuries so negligently caused him by the defendant that his earning capacity is now greatly reduced, if not entirely destroyed.

"Wherefore by reason of which, the plaintiff is advised and believes that right of action hath accrued to him against the defendant. Homochitto Lumber Company, in the full sum of fifty thousand dollars ($ 50,000.00), for which he brings this suit against said defendant and demands judgment together with all cost legally incurred herein."

To sustain his action under this count, the plaintiff testified as follows:

"Q. Did you have any control over the movement of the train? A. No, sir, only when I flagged them back to get material.

"Q. Are you familiar with and know the rules of the defendant company with reference to moving the train, or cars, after it once becomes still? A. Yes, sir. . . .

"Q. What was the rule with reference to moving the train after it had become still? A. Just as we flag them back, or flag them ahead, and...