Thames v. Batson & Hatten Lumber Co.

• Decision Date: 10 May 1926
• Docket Number: 25669
• Citation: 143 Miss. 5,108 So. 181
• Parties: THAMES v. BATSON & HATTEN LUMBER CO. [*]
• Court: Mississippi Supreme Court

108 So. 181

143 Miss. 5

THAMES v. BATSON & HATTEN LUMBER CO. ^[*]

No. 25669

Supreme Court of Mississippi

May 10, 1926

Division B

TRIAL. General instruction applicable to only one count, telling jury if they believed hypothesis stated therein to find for defendant, ignoring other counts, is reversible error.

Where a plaintiff sues a defendant in three separate counts, each setting up a separate ground of recovery, and where the evidence as to each count is conflicting, and where the court grants the defendant a proper instruction applicable to each count and then grants a general instruction which should be applicable to only one of the counts, telling the jury in such instruction that if they believe the hypothesis stated in the instruction they will find for the defendant, ignoring other counts, is error for which the judgment will be reversed.

HON. W A. WHITE, Judge.

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

Action by J. E. Thames against the Batson & Hatten Lumber Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Mize & Mize, for appellant.

One error assigned is the giving of the general instruction for the appellee as if applicable to all three counts in the declaration.

The court will remember that there are three counts in the declaration: the first charging negligence in furnishing a car with flat wheel; the second charging negligence in having the transfer track out of line to the extent that the rail of the transfer track at the point of transfer was half an inch wider than the meeting rail, causing a knot or kink that stalled the car; and the third charging failure to furnish a sufficient number of men competent to do the work.

Now if appellant proved the first count as to the flat wheel and that this was negligence contributing to his injury, if injured, he would be entitled to recover on the ground of a defective appliance. 4 Thompson on Negligence, p. 61, secs. 3781 et seq.

If he proved the second count, that the transfer rail was defective, causing the car to stall, and that this was negligence of defendant and proximately contributed to his injury, he would be entitled to recover on that count.

If he proved that an insufficient number of servants was furnished him to do the work of moving this car that morning, and the insufficiency was negligence on the part of the defendant and approximately contributed to his being injured, he would be entitled to recover under the third count.

The fatal defect in this instruction is that it limits his cause of action to count three, which is the weakest count in the declaration, in that the instruction tells the jury that if the defendant used the care of an ordinary prudent man in selecting the number of employees to move the cars from the green shed to the dry kiln on that occasion, the defendant was not liable.

Another defect in the instruction, and a vital one, is that it limits the defendant's act in furnishing the servants which it did on that occasion to an ordinary prudent man, without leaving it to the jury to decide if the defendant acting as an ordinary prudent man would act did furnish a sufficient number of servants on that occasion.

There is no instruction curing this given erroneous instruction for appellant, if indeed it could be cured.

Ford, White, Graham & Gautier, for appellee.

Every possible phase of the case was fully covered by proper instructions. The appellee's instructions are placed in the record in inverse order and the first in the record seems to be the main target for appellant's criticism.

Counsel's criticism of this instruction is that it was not limited to the third count in the declaration. The instruction is correct because: (1) It is served as explanation of other instructions both by the appellant and appellee, on the third count, and could not by any stretch of the imagination have misled the jury into believing that the court had limited their finding to the third count; (2) And because it was properly applied to all counts, for every count is fundamentally based on an insufficient number of servants and the negligence charged in the first and second counts could have in no way been the proximate cause of the injury if there had been a sufficient number of men present to move the car; and regardless of the condition of the wheel or track, if the master had provided a sufficient number of men to move it with safety, it was not liable under either count. This instruction clearly submitted that question of fact to the jury.

OPINION

ETHRIDGE, J.

The appellant was employed by the appellee and was injured in moving some lumber from the place where green lumber was stacked to the dry kiln. This lumber was moved over some tracks by means of cars which were pushed by hand power. Each car when loaded contained about two thousand seven hundred feet of green lumber; this lumber averaging about five pounds to the foot. The cars, containing the lumber, were moved down the track to a point where the track extended across another track, and were pushed down the other track to the dry kiln, and there transferred over a crosswise track known as the transfer track, and then, after this transfer, the cars were pushed on to a point opposite the dry kiln. These cars, or trucks, had four wheels, two on each side, and were pushed by physical strength or man power. At the time the appellant was hurt, the loaded car, on which was a wheel it was alleged would not roll, had been brought down the track which ran from the stack, and, in pushing this car at the point where the injury occurred, the plaintiff was caused to strain himself, resulting in a rupture of the stomach.

The declaration was in three counts. In the first count it was alleged that the defendant was doing business in Harrison county, being engaged in the manufacture of lumber, and that the plaintiff was employed as a laborer and by virtue of said employment was a servant of the defendant company, and that it was under duty to furnish him a reasonably safe place in which to work and reasonably safe appliances, tools, and machinery with which to work, and this duty the defendant negligently failed to perform, causing the plaintiff injury.

A second count alleged that the master owed the plaintiff the duty to furnish him a reasonably safe place in which to work and that it was the duty of the defendant to have the rails on the said car track so constructed that, when said car was pushed in position and in line with the track on which the car of lumber was loaded when the car of lumber came off the main track onto the transfer track the rails of the transfer car track would fit evenly and smoothly with the rails of the track on which the car of lumber was located; and the defendant negligently failed to do so, but that, when the rail of the transfer car track was put in position so as to be even and level with one rail on the track on which the car was, the other rail of the transfer car track would be something like one-half inch to one inch out of line, and would cause the flange on the car on which the lumber was loaded to strike the end of the rail on the transfer track, so that the car of lumber would not roll and slide smoothly on the tracks as it should have done, necessitating the plaintiff and his men exerting an extraordinary amount of strength in undertaking to get such car of lumber on the tracks of the transfer car.

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