Opinion
No. 34815.
February 9, 1942.
1. APPEAL AND ERROR.
Where plaintiff appealed, after motion for new trial had been overruled, on ground that verdict was so inadequate as to evince passion and prejudice, but defendant did not cross-appeal, the issue regarding liability was required to be taken as settled.
2. NEGLIGENCE.
In personal injury action where there was no evidence that plaintiff was negligent, but award was one-sixth of actual damages exclusive of pain and suffering, the verdict could not be upheld on theory that it represented a proper adjustment of responsibility under the comparative negligence statute (Code 1930, sec. 511).
3. DAMAGES.
Where there is no showing of contributory negligence, the question of existence of passion or prejudice in fixing amount of damages must be resolved by contrasting the uncontradicted showing of entire damages with the amount of the verdict.
4. APPEAL AND ERROR. Damages.
Where plasterer, using scaffold furnished by employer, sustained serious injuries when plank slipped off its support, and damages awarded by verdict were one-sixth of actual damages exclusive of pain and suffering, and there was no evidence that the plasterer was negligent, judgment was reversed and case was remanded on issue of damages alone.
APPEAL from the circuit court of Jackson county, HON. L.C. CORBAN, Judge.
Howie, Howie McGowan, of Jackson, and H.W. Gautier, of Pascagoula, for appellant.
As we view it, there is one simple legal question involved. That is, are the facts of the case such that the jury could impute a sufficient portion of the negligence to the plaintiff to justify a verdict for damages so out of line with the proof of injury made?
Chapman v. Powers, 150 Miss. 687, 116 So. 609; Pounders v. Day, 151 Miss. 436, 118 So. 298.
In both of the above cases, and especially the latter, the court made it plain that the jury could, if the facts warranted the same, impute a part of the negligence to the plaintiff and reduce his verdict proportionately. And this regardless of whether or not there was a plea of contributory negligence or instructions sought from the court to that effect. This is a simple statement of the law of the case, and is not sought to be qualified, avoided and circumscribed by the appellant.
This is the law of the case and brings us back to the question, was the jury warranted in attributing a part of the negligence to the plaintiff? We say that it clearly was not. If this jury was not, then the appellant should be sustained in his contention for a new trial for damages only, since that is the only question involved in the case.
The very theory adopted by the defendant in defense of the case belies any claim of contributory negligence on the part of the plaintiff.
The learned counsel for the appellee do not raise any questions of law in their brief, and content themselves by adopting the statement of the controlling principle of law of the case as stated in appellant's brief. They quote no cases except Chapman v. Powers, 150 Miss. 687, 116 So. 609, and Pounders v. Day, 151 Miss. 436, 118 So. 298. Counsel for the appellee consequently content themselves by attempting to make a forceful application of the facts in the case to suit their own interpretation of the law.
Ford Ford, of Pascagoula, for appellee.
Appellant in his brief takes the view that there was nothing in his case on which the jury could have found that the appellant was guilty of contributory negligence.
Our view of the case is that taking appellant's case as disclosed by the record it shows the negligence of the appellee, if any, was very slight, while that of the appellant was great.
The appellant in his brief concedes that the law authorizing the jury's action is settled in the cases of Chapman v. Powers, 150 Miss. 687, 116 So. 609, and Pounders v. Day, 151 Miss. 436, 118 So. 298, and state that they do not seek to qualify, avoid or circumscribe this law. They contend that the facts in these cases and the present case are not similar. We have carefully read these cases and have concluded from a reading of same that the plaintiffs in the above referred to cases made out strong cases of liability on the part of the defendants, whereas in this case the question of appellee's liability was exceedingly weak and the negligence of the appellant exceedingly great.
Argued orally by M.M. McGowan, for appellant.
Plaintiff was employed by defendant as a plasterer, and was furnished a scaffolding or platform on which to work. At the time of the injury sued for, plaintiff was engaged in plastering the walls of a room 7 x 9 feet, upon a scaffold constructed of planks 2 x 6 inches, placed crosswise upon two supports or "horses." This resulted in a platform six feet high, which covered the area of the room except for a space about ten inches along the north and south walls, and about eighteen inches along the east and west walls. Plaintiff was injured when the plank next to the north wall slipped off the support, causing him to be thrown to the floor. His injuries were serious, and the elements of damage sued for included $5,000 for personal injuries and resultant suffering, $1,070, loss of time, and $137.50, medical and doctors' bills.
The jury, under proper instructions, found the defendant liable and returned a verdict for $200. Plaintiff's motion for a new trial upon the ground of inadequate damages having been overruled, he appeals upon the ground that the verdict evinces passion and prejudice and should not be allowed to stand. There is no cross-appeal, and we must view the issue as to liability settled. There was no plea nor instruction setting up contributory negligence, but defendant asserts that under Chapman v. Powers, 150 Miss. 687, 116 So. 609, and Pounders v. Day, 151 Miss. 436, 118 So. 298, the jury were the sole and final judges of the extent to which the negligence of the plaintiff was a contributing factor, and that it will be assumed that their verdict represents a proper adjustment of responsibility under our comparative negligence statute, Code 1930, section 511. The trouble with this position is that there is no negligence shown on the part of the plaintiff. The platform and scaffolding were erected by defendant, and plaintiff was directed to use it. Whether the board was nailed to the trusses or was warped, or whether the platform met the requirements of the defendant's duty to plaintiff, were resolved by the jury in their verdict. There is no evidence that the plaintiff was negligent in any way. It is in this respect that the case is outside the rule of the two cases above referred to. In Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487, we held that an unjust appraisal of the degree to which a plaintiff's negligence contributed to the injury may in a proper case be a basis for reversal. It is clear that where there is no showing of contributory negligence, the question of the existence of passion or prejudice must be resolved by contrasting the uncontradicted showing of the entire damage with the amount of the verdict. Here the award was one-sixth of the actual damages, exclusive of pain and suffering.
Reversed and remanded upon the issue of damages alone.