119 So. 2d 778 | Miss. | 1960
The plaintiff Martin L. Ballenger was employed as a truqk driver by A. B. Bradford, an independent logging contractor, who delivered logs to the appellee Vicksburg Hardwood Co., Inc., at its Blakely mill north of Vicksburg, in August 1958.
The declaration alleged that the appellant Martin L. Ballenger was employed as a truck driver by A. B. Bradford, an independent logging contractor for the Vicksburg Hardwood Co., Inc. The answer of the appellee admitted this allegation to be true and hence it is both alleged and admitted that the appellant was an employee of Bradford, the independent contractor.
The testimony on behalf of the plaintiff was to the effect that on the 20th day of August, 1958, when he arrived at the appellee’s mill he was directed by the em
There was no direct testimony as to any active negligence on the part of the defendant Vicksburg Hardwood Co., Inc., but the contention of the appellant is that if the existing pile of logs on the yard of the appellee had been properly stacked, then one of them would not have rolled off the pile and injured the appellant. He therefore relies entirely on the doctrine of res ipsa loquitur, since the pile of logs in question was in the possession and under the control of the appellee. This is the only question left in the case since the declaration alleged and the answer admitted that the plaintiff was a truck driver for an independent contractor, and therefore the Workmen’s Compensation act has no application.
It is well settled under our decisions that when a peremptory instruction is requested on behalf of either party, then all of the evidence and all reasonable inferences that may be drawn therefrom are to be taken as true against the party on whose behalf a peremptory charge is asked. Long v. Patterson, 198 Miss. 554, 22 So. 2d 490; Allgood v. United Gas Corporation, 204 Miss. 94, 37 So. 2d 12; Thomas v. Mississippi Products Inc.,
In the instant case the trial court sustained a motion for a peremptory instruction on behalf of the defendant at the close of the testimony offered by the plaintiff. We think that the plaintiff’s case presented an issue for the determination of the jury under the doctrine of res ipsa loquitur since the defendant was in possession and control of the pile of logs from which the log fell and rolled against the plaintiff, and that it was a question for the jury to determine whether the log would have become dislodged and rolled against the plaintiff if the pile of logs had been properly stacked. We therefore think it was error for the court to have peremptorily instructed the jury to find for the defendant.
Reversed and remanded.