Opinion
No. 32510.
January 18, 1937. Suggestion of Error Overruled, February 15, 1937.
1. MASTER AND SERVANT.
If employee was furnished with safe place to work and was injured as result of placing himself in a dangerous place not called for by his duties, in order to assist a fellow employee, employee could not recover for injuries.
2. APPEAL AND ERROR.
Verdict could not be disturbed on appeal where not contrary to overwhelming weight of the whole evidence.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Jo Drake Arrington, of Gulfport, for appellant.
The plaintiff contends he was entitled to a peremptory instruction because the testimony and the physical facts and circumstances, together with all reasonable and logical inferences therefrom, do not support a finding for the defendant; and a verdict for the defendant should not be allowed to stand.
McFadden v. Buckley, 53 So. 351; National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91; Hardy v. Masonic Benevolent Assn., 103 Miss. 108, 60 So. 48; Elliot v. G.M. N.R. Co., 145 Miss. 768, 111 So. 146.
The defendant was guilty of negligence as a matter of law.
Huff v. Bear Creek Mill Co., 77 So. 306, 116 Miss. 509.
Instruction No. 2 mentions abstractly only two counts in the plaintiff's declaration, whereas the declaration contains six counts. The instruction plainly tells the jury that the plaintiff was seeking to recover only for the defendant's failure to exercise reasonable care to provide him: (1) a reasonably safe place in which to work, and (2) reasonably safe machinery around which to work. The instruction is fatally erroneous under the authority of Thames v. Batson Hatten Lbr. Co., 108 So. 181, 143 Miss. 5.
The fourth assignment of error is the granting of instruction No. 3 for the defendant. That instruction refers only to one count in the plaintiff's declaration, and ignores all the others. It does not specifically tell the jury that it may find for the defendant as to one particular count, but states generally that "the jury may find for the defendant," without reference to the other counts.
Thames v. Batson Hatten Lbr. Co., 108 So. 181, 143 Miss. 5; Lackey v. St. Louis S.F.R. Co., 102 Miss. 339, 59 So. 97; Dent v. Mendenhall, 139 Miss. 271, 104 So. 82; J.C. Penney v. Morris, 173 Miss. 710, 163 So. 124; Cumberland Tel. Tel. Co. v. Cosnahan, 105 Miss. 615; 62 So. 824; Y. M.V.R. Co. v. Dyer, 102 Miss. 870, 59 So. 937.
An instruction which purports to deal with the case entirely, but in fact and in law, deals with only one aspect (or count or ground or issue) of it, is reversible error, as it excludes and cuts the plaintiff off from other issues.
When a verdict is against the overwhelming weight of the evidence, and when it is shown a party has not received a fair trial, or that justice has not been done, it should be set aside and a new trial granted.
Fore v. I.C.R.R. Co., 172 Miss. 451, 160 So. 903; Columbus G.R. Co. v. Buford, 116 So. 817; M. O.R.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.
It is only too apparent that justice has not been done in this case.
White Morse, of Gulfport, for appellee.
This court has held numbers of times, where the injuries to a servant are the proximate result of his own negligence, without any negligence on the part of the master, that the servant cannot recover.
Ovett Land Lbr. Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Rose v. Pace, 144 Miss. 375, 109 So. 861.
Appellant complains that the court erred in granting the following instruction to the defendant: "The court charges the jury for the defendant that if you believe from the evidence that plaintiff was furnished with a safe place to work, and was injured as a result of placing himself in a dangerous place not called for by his duties, in order to assist a fellow employee, then plaintiff cannot recover and you must find for the defendant."
This instruction is based upon the issue made by plaintiff that defendant did not furnish plaintiff with a safe place to work.
Hinton Bros. Lbr. Co. v. Polk, 117 Miss. 300, 78 So. 179; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154.
The eminent trial judge who conducted the trial of the cause in the court below, tried the case fairly and impartially, the matter was submitted to the jury and the jury found for the defendant. Certainly, if the verdict was contrary to the weight of the testimony and the plaintiff had not received a fair trial in the court below, the eminent judge who tried the case would have set aside the verdict and granted appellant's motion for a new trial.
Argued orally by Jo Drake Arrington, for appellant, and by Stanford E. Morse, for appellee.
This is a personal injury suit in which the jury returned a verdict for the defendant. The latter requested and obtained the following instruction: "The court charges the jury for the defendant that if you believe from the evidence that plaintiff was furnished with a safe place to work, and was injured as a result of placing himself in a dangerous place not called for by his duties, in order to assist a fellow employe then plaintiff cannot recover and you must find for the defendant." This instruction is a correct announcement of the law as seen from McKinnon v. Braddock, 139 Miss. 424, 104 So. 154, and Hinton Bros. Lumber Co. v. Polk, 117 Miss. 300, 78 So. 179.
There is substantial testimony in the record in support of the instruction; and after a careful examination of transcript, we cannot properly say that this testimony is contrary to the overwhelming weight of the whole evidence. We are, therefore, not authorized to interfere with the verdict and judgment.
Affirmed.