Ozen v. Sperier

• Decision Date: 07 May 1928
• Docket Number: 27066
• Court: Mississippi Supreme Court
• Parties: OZEN v. SPERIER et al. [*]

117 So. 117

150 Miss. 458

OZEN v. SPERIER et al. ^[*]

No. 27066

Supreme Court of Mississippi

May 7, 1928

Division B

1. MASTER AND SERVANT. Employer's negligence in overcrowding truck on which employee was injured in collision with another truck and using unimproved roadway held insufficient for jury, in view of intervening cause.

In action against employer and another for injuries resulting to employee in collision between employer's truck on which he was riding and codefendant's truck, evidence as to negligence of employer in overcrowding his truck and using unimproved highway held insufficient for jury, in view of plaintiff's proof showing conclusively that neither of such alleged acts of negligence constituted proximate cause of injury, but that injury was due to negligently loaded and negligently driven truck of codefendant, which was independent intervening cause.

2. APPEAL AND ERROR. Plaintiff is bound by case made in his declaration.

Plaintiff on appeal is bound by case made in his declaration, since he cannot make one case in his pleadings and another by his proof.

3. MASTER AND SERVANT. Employer is not liable for negligence of fellow servant.

Employer is not liable for injuries to employee resulting from negligence of fellow servant.

4 DAMAGES. Five hundred dollars for injury resulting in five months' loss of time and causing lameness held grossly inadequate.

Five hundred dollars damages for personal injury causing loss of approximately five months' time, with two hundred and eight dollars doctor and hospital bills, and causing lameness so as to make it difficult for injured person to secure job as brick layer, held grossly inadequate.

HON. W A. WHITE, Judge.

APPEAL from circuit court of Harrison county, HON. W. A. WHITE, Judge.

Action by Manuel Ozen against Lewis Sperier and the Glover Construction Company. Judgment for defendant Glover Construction Company, and for plaintiff against defendant Lewis Sperier in an amount claimed to be insufficient, and plaintiff appeals. Affirmed as to liability, and reversed and remanded as to damages only.

Affirmed as to liability, and reversed and remanded as to damages only.

J. D. Arlington and Mize, Mize & Thompson, for appellant.

The court erred in granting the Glover Construction Company a peremptory instruction. Plaintiff's case against the Glover Construction Company was confirmed, strengthened, and corroborated by the testimony of Lewis Sperier. Appellee Sperier contradicted the appellant's testimony that the iron materials on the former's truck were extending over and beyond its sides or body. In all other material testimony Sperier's evidence corroborated and confirmed that of the appellant. As to whether or not the iron brackets on the truck of the appellee were negligently loaded so as to be protruding or extending over the side or body of the truck, was an issue or question of fact submitted to the jury, on conflicting testimony, and was properly so done. But there was uncontradicted evidence to the effect that the Glover Construction Company's truck was overcrowded; that the appellant was sitting, by necessity in an exposed and perilous position on the said truck; that the planks used as seats on the truck extended between six and sixteen inches over the sides of the truck, that there was no collision between the passing trucks; that the planks thus extending over the sides of the Glover Construction Company's truck came in contact with some part of the passing truck of Lewis Sperier one of the appellees; that the appellant foresaw his imminent peril and injury, and was unable to avoid the danger. There was also testimony to the effect that the truck of the appellee, the Glover Construction Company, swayed and swung over onto or against that of the appellee Lewis Sperier. See R. 87, 90, 94, 95, quoting R. 94, Sperier's testimony. When there is evidence tending to make out the plaintiff's case, a peremptory instruction should not be granted. Negligence being a question of fact for the jury it is only when reasonable minds cannot differ in their conclusions from the evidence, that it is or can become, a question of law for the court to decide. Dean v. Brannon, 139 Miss. 312, 104 So. 173; Wise v. Peugh, 140 Miss. 165, 106 So. 81; N. O. Ry. Co. v. Jackson, 140 Miss. 375, 105 So. 770; St. Louis Ry. Co. v. Nixon & Phillips, 105 So. 478; Yates v. Houston & Murray, 141 Miss. 81, 106 So. 110.

There is not necessarily presented the question of an independent intervening cause, on which theory the court could conceivably have found the Glover Construction Company not guilty of negligence contributing to appellant's injuries. Both appellees could have been found by the jury to be guilty of negligence that concurred to produce appellant's injuries. Appellant cites: Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; Susie B. Harrison v. Kansas City Elec. Light Co., 195 Mo. 606, 93 S.W. 951, 7 L. R. A. (N. S.) 293; Y. & M. V. R. Co. v. Smith, 103 Miss. 150, 60 So 73; I. C. R. Co. v. Thomas, 109 Miss. 536, 68 So. 773; Coccora v. Vicksburg Light & Traction Co., 89 So. 257; Gulf & S. I. R. Co. v. Carlson, 102 So. 168, 137 Miss. 613. In G. & S. I. R. Co. v. Carlson, supra, the court held that to give a codefendant a peremptory instruction when the evidence tended to show negligence on the part of the party receiving it, was to virtually grant a peremptory instruction against the remaining codefendant. And that was exactly what happened in this case, for the appellee Sperier's testimony denied any negligence on his part whatever, and made out a perfect defense. Appellant was not a passenger, but still in the services of his master, who owed him the duty to furnish safe transportation--a greater duty than if the appellant had been a mere invitee. Belzoni Hardwood Lumber Co. v. Langford, 89 So. 919; Tallahalla Lumber Co. v. Holliman, 87 So. 661; Cattano v. Metropolitan Street Railway Co., 13 Amer. Neg. Rep. 566, 173 N.Y. 565; Holloway v. Pasadena P. R. Co., 13 Amer. Neg. Rep. 579, 130 Cal. 177.

The court erred in overruling appellant's motion for a new trial against Lewis Sperier, on the ground of the inadequacy of the damages. It was shown by the appellant and Dr. Rafferty, who treated him in and out of the hospital, that he was confined in the King's Daughters Hospital, at Gulfport, for a period of six weeks, and that the expenses for his hospitalization were ninety-five dollars. His expenses for medical treatment for ten weeks under Dr. Rafferty were one hundred eighty-five dollars. There was an ambulance expense of five dollars. Appellant's necessary expenses as a result of the injuries sustained were alone two hundred eighty-five dollars. From July 16th, to the latter part of December, a period of five months, appellant was unable to work, his disability therefor being a result of his injuries. It was shown that appellant was a skilled brick layer earning twelve dollars per day at the time his injuries were received. In the loss of time alone, appellant was damaged in a sum almost three times the amount of the verdict. It was shown that the injuries were very painful, and that the appellant endured, and still endures, great suffering. It appears conclusively from the evidence, that appellant's injuries were serious and are permanent. The fact that appellant, was a negro, a resident of the city of New Orleans, the domicile of his then employer, the Glover Construction Company, and a laborer of such unusual and commendable skill as to command regular employment at the wage of twelve dollars a day, those facts alone are sufficient to confirm the impression that the verdict in its inadequacy was the result of a perhaps unconscious and subtle bias and prejudice; and especially when the defendant was a white man, whose testimony was corroborated by that of his wife and another white man. Appellant cites in support of his contention: Mosely v. Jameson, 68 Miss. 336, 8 So. 744; Scott v. Yazoo & H. V. R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil & Mfg. Co., 105 Miss. 711, 63 So. 219; Murphy v. Cleveland, 106 Miss. 269, 63 So. 572; Ann. Cas. 1915B, 454; White v. McRee, 111 Miss. 502, 71 So. 804; Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143. This case should be reversed on all, or either, of the errors assigned, and remanded for a new trial on the question of the Glover Construction Company's liability and that of damages against the appellee, Lewis Sperier.

Carl Marshal, for appellee.

At the time of the accident the plaintiff was being furnished with transportation in an automobile from the site of the hotel to his home in Pass Christian. The defendant, Lewis Sperier, had no connection with the defendant Glover Construction Company. The Glover Construction Company furnished two trucks to convey its employees from the scene of the construction to the city of Pass Christian when the men ceased work in the evenings. On the day of the accident each of the trucks made only one trip; and in consequence of this, the truck in which the plaintiff was riding was considerably crowded; some of the men standing up, and the plaintiff electing to sit in the lap of a fellow brick layer who was seated on the left-hand side of the vehicle. The workmen sat upon boards placed across the sides of the truck; the boards protruding according to all of the plaintiff's testimony, between four and six inches beyond the sides. Every witness in the case agreed in testifying that the road was such that the two vehicles could safely pass, with the Sperier truck properly loaded, and both trucks driven with care commensurate with the conditions. All that any evidence in the case tended to establish was that the immediate, efficient and proximate cause of the accident was (1) the...