Walker Bros. v. Nix

• Decision Date: 09 July 1917
• Court: Mississippi Supreme Court
• Parties: WALKER BROS. v. NIX

76 So. 143

115 Miss. 199

WALKER BROS. v. NIX

Supreme Court of Mississippi

July 9, 1917

March 1917

Division B

APPEAL from the circuit court of Clarke county, HON. W. W. VENABLE Judge.

Suit by T. H. Nix, by next friend against Walker Bros. From a verdict for plaintiff both parties appeal.

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

Affirmed, reversed and remanded.

J. A Anderson, for appellant.

We think the court erred in refusing instruction No. 1, asked for on the part of the defendants. The testimony is overwhelming that there was no partnership between defendants at the time of plaintiff's employment, and at the time he was hurt the testimony shows that the mill was operated solely by G. E. Walker.

The testimony of plaintiff himself shows that his own negligence was the cause of the injury. (See his cross-examination.) He said he was looking at the boiler at the time of the injury and not his work and that this was the reason he got hurt.

Other testimony of the case shows that plaintiff's job was on the ramp rolling logs, and that on the morning he was hurt at his suggestion he swapped jobs with John Cook. He told John Cook he was asleep when he got hurt. He told Jack Cook that it was his own carelessness that he got hurt and that he was asleep at the time.

The preponderance of the testimony shows that the missing dog was not necessary, nor, was it necessary for plaintiff to put his hand on the log. Plaintiff told J. L. Williams that it was his own fault he got hurt; that he was sitting up there asleep. J. D. Gibson carried plaintiff to Williams' house after he got hurt. Plaintiff said there that he got hurt and that it was his own fault. (See J. D. Gibson's testimony.)

Plaintiff told Earl Williams that he was asleep when he got hurt and that he had been up the night before. He also told Earl Williams that he was the sole cause of it, and that he did not blame the Walker boys a bit. Said he had gotten his money in settlement in this matter. (See testimony of Earl Williams.)

At Williams' house plaintiff said in the presence of J. D. Gibson, Earl Williams, J. L. Williams, and others that he went to sleep on his job and had he been noticing he would not have got hurt. (See testimony of each of these witnesses.)

We think the court erred in admitting the testimony of T. H. and James Nix as to any defect in the boiler. There was no allegation of a defective boiler in the declaration. We think the court erred in admitting the opinion evidence of J. L. and T. H. Nix as to the defective boiler. Plaintiff did not have any right to recover on the ground of a defective boiler. We think the court erred in refusing defendant's instruction No. 1. There was not sufficient proof of a partnership on the part of plaintiff, and defendants' testimony conclusively shows that at the time of the injury there was no partnership and that G. W. Walker alone was interested in the mill.

We think that instruction No. 6 should not have been given plaintiff, while there was no plea of assumption of risk in this case still in undertaking the employment plaintiff assumed the risk necessarily incident to his employment. We think this a case where the testimony not only for the defendants but of the plaintiff himself clearly shows that the sole cause of the injury done plaintiff was his own negligence, and the testimony further shows that for any injury he did receive he accepted the sum of forty-five dollars in full settlement for same.

We respectfully submit that this cause should be reversed and remanded for a new trial.

T. G. Fewell and C. B. Cameron, for appellee.

The fifth assignment of error is predicated on the granting to plaintiff of the sixth instruction, which instruction is here set forth: "The court charges the jury for the plaintiff that there is no question of assumption of risk in this case." Certainly counsel cannot be in earnest in urging this assignment before this court. The plaintiff was entitled to this instruction inasmuch as there was no plea of assumption of risk filed by the defendants.

Assumption of risk is an affirmative defense and to be availed of, must be pleaded. See 3 Encyc. Pleading and Practice, at page 114. "Assumption of risk--The defense that the plaintiff assumed the risks incident to the employment is also an affirmative defense and should be specially pleaded." Citations under above text: Louisville R. Co. v. Orr, 84 Ind. 50; Mayes v. Chicago R. Co., 63 Iowa 562; Nichanbus v. Chicago R. Co., 90 Iowa 85; Walker v. McNeil, 17 Wash. 582; Oregon Short Line R. Co. v. Tracy, 66 F. 931. The above has been the rule in Mississippi so long that we need not cite the court any authorities.

Not having pleaded assumption of risk, it was proper for the court to grant the instruction now complained of by appellant. The last assignment of error is based on the court overruling appellant's motion for a new trial.

We submit that a careful reading of this record will disclose no fact which would have authorized the court to set aside the verdict of the jury, except the inadequacy of the damages and there seems to be some doubt as to the power of the lower court to do this. Certainly this can be done and has been repeatedly done by this court under its rules governing cases before this tribunal.

Counsel contends that the record shows that appellee's own negligence was the cause of the injury. We take issue. The record shows abundantly that had the master furnished his servant with a reasonably safe place in which to work, that the servant would not have been injured. That this was his duty is not denied.

As to cross assignment of errors we earnestly and respectfully submit in conclusion that the record shows appellee to have been injured permanently through the negligence of the defendants and that this court should affirm same as to liability and reverse only for proper assessment of damages commensurate with the permanent injury and...