Anderson v. Cumberland Telephone & Telegraph Co.

86 Miss. 341 | Miss. | 1905

Cos, J.,

delivered the opinion of the court.

A motion to exclude the evidence and instruct for defendant is analogous to a demurrer to the evidence, and in the main is governed by the same rules. It admits the truth of all the evidence for the plaintiff. It admits all the facts which the evidence for plaintiff tends to prove, or of which there is any evidence, however slight, and all inferences favorable to plaintiff which can logically and reasonably be drawn from the evidence.' It waives all the evidence for the defendant which is contradictory to that of the other party, all his evidence the credit of which is impeached, and all inferences from his evidence which do not necessarily flow from it. A motion to exclude the evidence should never be allowed unless it is plainly and unmistakably insufficient to maintain the issue, nor except in cases where the court would feel constrained to set aside a verdict for the opposite party as unwarranted by the evidence. If the evidence favorable to plaintiff, accepted as true, with, all fair and reasonable inferences and deductions which might be drawn therefrom, makes a prima facie case for plaintiff, the motion should not be allowed, but the case should be submitted to the jury, who, under our system, are deemed the best judges of the facts in evidence and of all the inferences to be drawn therefrom. If, thus considered, the evidence in the instant case made a prima facie case for plaintiff, the motion to exclude should not have been allowed.

Edward Anderson, a -boy less than fourteen years old, and a very delicate child, was a messenger boy for appellee at Canton. He was employed to wait around appellee’s office, to go out and get persons when wanted at the office, and to render such other incidental service as .might be expected of a child employed as a telephone messenger boy. The putting in of telephones, the climbing of poles, the stringing of wires, were beyond the scope of his employment. On the day of his death, one Potter, who was the manager of appellee’s business at Canton, and Vice principal as to the boy Anderson, standing to him in the place of the corporation in whose employ Anderson was as his employer and master, asked him if he knew how to wire a telephone. Hpon his responding in the affirmative, Potter told him to get a hammer and go help Mr. Jones wire. The work which was to be done was the moving of a telephone from one store to another in the town of Canton, and the reestablishing of connections. It involved the taking loose of a current wire from a telephone pole and bringing it across a street in Canton and its attachment to a bracket upon the front of the store to which the telephone was to be removed, which bracket was above a shed on the front of the store. The telephone was taken out of the old store and put in the new one by one Coleman. Jones does not appear to have had anything to do with this. Coleman left the wire, and told Jones how to change it. Young Anderson was assisting Jones to move the wire, and while up an electric light pole near the store to which the tele-pbone bad been, moved, with the wire fastened to his wrist, was jerked from the pole by the horse of one Shannon, which had become entangled in the wire as it was extended across the street, and, falling’, received injuries from which he died. Potter was present while the wire was being moved. He seemed to be superintending and directing the work of removing the wire. He saw young Anderson up the pole from which the wire was removed. He was seen to wave his hand to' him while up that pole, and to shout something to him, which was not understood by the witness. This was a very short while before Anderson fell from the electric light pole. It was not shown absolutely that Potter saw Anderson up the electric light pole. But he was standing in plain view of that pole, looking toward it and upward, with nothing to obstruct his vision, just a little while before Anderson fell. About the time Anderson fell he (Potter) was standing in a few feet of the coil of wire of which Anderson had the loose end attached to his wrist, and when Shannon’s horse became entangled in the wire he sprang forward and assisted in extricating him. It is perfectly evident that the conditions existing at the time under Potter’s eye, and apparently under his direction, were highly dangerous to persons passing on horseback or in vehicles, and especially to a person in the situation of young Anderson, who was up the electric light pole with the wire fastened to his person. From all the facts in the case it might fairly and reasonably be inferred that Potter understood the situation, and was negligent in not taking ample precaution to guard Anderson from the danger incident thereto. Indeed, it seems to us that there is strong presumption of fact that the boy, acting under the eye of the master, ascended the pole under his direction, and exposed himself to great danger in executing a task for which he was in no wise fitted, and which was beyond the scope of his • employment. This inference and presumption is not conclusively rebutted by the fact that Jones testified that Potter ordered Anderson down from the telephone pole, and told him not to climb any more poles. Jones’ testimony is of a very doubtful credibility. His statement is discredited, and by a jury might, in the exercise of their lawful discretion, be entirely disregarded, because of the fact that he had, directly after the death of Anderson, made a written statement for defendant of the facts of the ease, in which he made no mention of Potter’s order to Anderson to climb no more poles. This makes it look suspiciously like an afterthought. He is further discredited by the fact that his statement as to where Potter was at the time Anderson fell — a material point in the case — is in irreconcilable conflict with the testimony of a number of other witnesses. Por this alone the jury might have believed him guilty of deliberate and willful false swearing, and entirely disregarded his testimony. It is a little remarkable in this connection that Potter, appellee’s manager at the time of the injury complained of, and who knew the facts, if any one did, as to what caused Anderson to ascend the electric light pole, who was co-defendant in the cause with appellee, Avho had declined to plead to the declaration, and as to whom appellee’s counsel announced during the progress of the trial that “Mr. Potter makes no contest, and the plaintiff can take judgment against him at this time,” was not presented as a witness by defendant. The failure to present a witness who can be had, and who is presumed to be friendly to defendant, who knows exculpatory facts if any one does, raises a strong presumption that such facts do not exist.

The facts of this case do not conclusively establish contributory negligence upon the part of Anderson. Indeed, we see no reason why the ease should not be submitted to the determination of a jury. It is not the province of the court to settle issues about which, as in this case, reasonable men might, and perhaps would, differ. There is no material variance between the allegations and the proof.

Reversed and remanded.