79 So. 73 | Miss. | 1918
delivered the opinion of the court.
The appellant, Mrs. E. A. Ennis, administratrix of the estate of her deceased son, John W. Ennis, filed suit and recovered judgment against the appellee railway company for the sum of thirteen thousand dollars as damages for the death of her son, alleged to have been caused by the negligence of the appellee in-furnishing a defective and dangerous electric wire appliance to the deceased for use in his employment, which shocked him to death. The verdict and judgment for thirteen thousand dollars on motion for a new trial, wa's set aside, and a new trial granted the defendant railroad, in the lower court. On the second trial of the case the plaintiff below recovered damages in the sum of five thousand dollars, whereupon she moved the court to set aside this verdict and grant a new trial because the court had erroneously limited the measure of damages to an amount recoverable1 under the federal Employers ’ Liability Act (Act Cong. April 22, 1908, chapter 149, 35 Stat. 65 [IT/ S. Comp-. St. 1916, sections 8657-8665]), and from a judgment overruling this motion for a new trial, and from the judgment setting aside the former verdict of thirteen thousand dollars and granting a new trial to defendant, plaintiff below appeals here.
The appeal presents two questions for our decision: First, whether or not the lower court erred in setting aside the first verdict for thirteen thousand dollars and granting a new trial to the defendant railroad company, or, in other words, whether this court should now reinstate the former verdict and judgment for thirteen thousand dollars in favor of. the appellant; second,
The verdict and judgment in the first trial was based upon and mainly supported by the testimony of one witness named Boswell, who testified for the plaintiff that he was employed in the shops of the appellee railroad in Vicksburg at the time and where the deceased John Ennis met his death; that young Ennis was employed as a boiler maker’s helper in the shops, •and at the time he came to his death was assisting one Mir. Desmond, a boiler maker, repair the inside of a fire box of a locomotive by putting certain bolts therein; that he was holding in his hand an electric light connected by an extension cord furnished by the appellee, and was holding this light in such a way that the boiler maker could see how to do his work in the fire box. The light was attached to a long cord, and the glass bulb was covered by a wire guard over it; that this guard on the lamp was defective and out of order, and would slip and come in contact with the electrically charged part of the lamp; that, while the deceased, Ennis, was thus engaged in the duties of his employment in holding the light for the boiler maker, lie suddenly fell down on the deck of the engine or tank, where he was standing, and exclaimed, “My G-od, the light’s got me!” and died within a few minutes thereafter, still clinging to the electric cord and light. The witness Boswell testified at length that lie worked near by and had used this particular light and cord on several occasions previously, and that he had been' electrically shocked while using it as many as six or eight different times, which, he said, was on account of the defective condition of the cord and light, and that he had several times within the previous week reported
All of this testimony amounted to nothing more than a contradiction of Boswell or the impeachment of his credibility. Upon this testimony contradicting and impeaching the witness Boswell, the lower court set aside the verdict and judgment of thirteen thousand dollars and granted a new trial to the defendant railroad company ; and the appellant, Mrs. Ennis, the administratrix, urges here that this action of the lower court was erroneous, and contends that the former judgment should be reinstated. The appellee railroad company contends that the lower court was correct in setting aside the verdict and granting a new trial on the newly discovered evidence, and also because it was error in the lower court to have granted an instruction to the plaintiff permitting recovery of punitive damages, and that, while the judgment of the lower court in sustaining the motion for a new trial states that its action is based upon newly discovered evidence, still that if that is a wrong reason given, the motion was properly sustained on account of the erroneous punitive damage instruction given the plaintiff.
We will first discuss the question as to whether-the instruction for punitive damages granted the plaintiff was erroneous. The record discloses abundant proof, in
Our understanding of the settled law in this state with reference to the granting of new trials on newly discovered evidence is that when the newly discovered evidence. merely goes to discredit or impeach an adverse witness who testified in the trial, it is not, as a general rule, good ground for a new trial, as the only effect of such evidence would be to contradict or impeach the credibility of the witness, and such testimony may be discovered ia almost every case; and if it warranted the granting of a new trial by the judge, even- though he believed it to be true, would cause no end to litigation. In the cases of Vanderburg v. Campbell, 64 Miss. 89, 8 So. 206, Moore v. Railroad Co., 59 Miss. 243, and Bailey v. State, 94 Miss. 863, 48 So. 227, 20 L. R. A. (N. S.) 409, the leading cases in this state on that subject, the rule is clearly announced that a new trial will not be granted on the ground of newly discovered testimony, the only effect of which would be to impeach the credibility of a. witness. 20 R. C. L. 294.
It is unnecessary for us to discuss the soundness-of this rule so well established in our state and elsewhere, but we venture to say that it must be obvious to all that to grant a new trial merely upon impeaching testimony would tend to prevent an end to litigation.
There is no legal merit in the contention of appellee railroad company that plaintiff’s evidence was a surprise to it. It is often so, in such cases, but this fact does not afford good ground for a new trial. No good objection to the testimony could be made, nor was continuance asked. See Dredging Co. v. Christie, 196 Ala. 421, 72, So. 124.
The conclusions reached above, of course, make it unnecessary for us to discuss the question involved in the second or last trial.
Therefore, we conclude that the lower court erred in setting aside the verdict and judgment for thirteen thousand dollars rendered for the plaintiff in the first
Reversed and judgment here.