Bradford v. Taylor

85 Miss. 409 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

The proof upon this trial fully sustained all the material allegations of the declaration, and upon the former appeal herein it was decided that the declaration in the case presented a good cause of action. It is argued that appellee is not entitled to recover because the proof shows that she was an experienced laundress, and is therefore in law presumed to have assumed the risks ordinarily incident to such occupation. As a general legal proposition, this is sound,- but it has no application to- the case at bar, for this reason: The testimony, which the jury decided to be true, shows that, while appellee was familiar from previous experience with the general details of laundry work, she was a novice in the operation of machinery, and ignorant and without experience in the use of the particular defective machine by which she was injured, which was by the master negligently permitted to remain in an unsafe and defective condition, and which the appellee had been, by her vice principal, misled into believing to he safe. Risks so arising were not incident to her employment, and she had the right to rely upon the representations of her vice principal. The proof showed that the appellee was injured by the negligence of her vice principal, standing in the relation of master to her. The contention that in the commission of the particular act causing the injury the vice principal was acting in the capacity of a fellow-servant with appellee is not tenable. The injury was caused conjointly by the negligence of the master in leaving off a necessary protective attachment from, the machine by which appellee was injured and by the act of the vice principal in starting the machinery without warning to appellee and distracting her attention so that she was unaware of the peril of her situation. The act of the vice principal in starting the machinery was in no sense the act of a fellow-servant with appellee. The record plainly discloses that the machinery was solely in the charge of the vice principal, and the operation thereof no part of the duty of appellee.

The sixth and seventh instructions for appellee, are erroneous, and ought not, strictly speaking, to have been given under the facts of this case; but inasmuch as the amount of the verdict found by the jury does not exceed, or in fact measure up to, the compensation which appellee was entitled to recover, it is manifest that they did not prejudice the rights of appellant. Wherefore the error is not of sufficient importance to justify the reversal of a cause in which the right result has been reached and the damages awarded are by no means excessive.

Affirmed.