Fountain v. J. J. Newman Lumber Co., 78 So. 157

Fountain v. J. J. Newman Lumber Co.

78 So. 157 | Miss. | 1918

Ethbidge, J.,

delivered the opinion of the court.

Henry Fountain, a minor nineteen years old, was employed by the J. J. Newman Lumber Company in one of its mills to operate a planer.- His duties .were to feed lumber into the planing mill, and this lumber was placed within easy reach by other employees of the company upon what is known as a lumber dolly, being a carriage or vehicle of two wheels upon which lumber was .loaded, in the present case to the height of three and one-half or four feet above the bed of the dolly, and the lumber held in place by means of two standards placed upon either side of the dolly. These standards were boards, one by four inches, made of common pine. The appellant, being employed as above mentioned, had used the lumber from one dolly and moved that out of the way and pulled up the one in question within convenient distance of his place of work. *287He turned and got a scantling to “scotch.”' the wheel, and, after doing this, turned to go to his place, when one of the standards broke which held the lumber, and the lumber fell upon him and broke his arm. He was laid off from December 16th to January 20th. He testified that he had nothing to do with the loading of the lumber upon the dolly or the fixing of the standards to hold the same in place; that duty having devolved upon an employee- in another department. The negligence complained of in this case is: First, the selection of a weak and improper standard, insufficient in size and strength to hold the lumber in place; and, in the second place, in having the dolly overloaded with heavy lumber. The plaintiff testified that it was the custom of the company to use standards of the size and character used in the present instance, and that it was not an uncommon occurrence for such standards to give way and break under the weight of the lumber; that such had often happened at the mill. The plaintiff introduced , Dr. Bryan and Mr. Lambert, the foreman, Dr. Bryan being the company’s physician. Dr. Bryan testified that he examined the arm on the evening after the injury, and it was swollen, and he dressed it and directed Fountain to come back the following morning, when he examined the arm critically and found it broken and splinted the arm. At the time of the injury Dr. Bryan gave a certificate showing that the disability was due entirely to the accident. On the witness stand on cross-examination he testified that plaintiff told him that he had previously had a fracture of the arm, and that he found evidence in his opinion of the arm being fractured. He testified, however, that the arm was frac-' tured, and that the plaintiff was laid off for the time above stated. At the time the injury occurred plaintiff testifies that he went to Dr. Bryan, and that Dr. Bryan asked him if he had a certificate from the foreman, and plaintiff said that he did not have, and Dr. Bryan told him that he could not examine the arm until he pro*288cured such, a certificate. That thereupon he searched for Mr. Lambert, the foreman, but could not find him until late in the day, and that he got the certificate and returned to Dr. Bryan and Dr. Bryan told him that he was quite busy, and to come bach the next morning, and that the doctor painted the arm in iodine aüd bound it, and did not examine it critically until the following morning, some twenty-six or twenty-eight hours after the accident. Plaintiff introduced 'the foreman, who testified as to his injury, but the foreman in his testimony claimed that another employee had come to him something like four hours prior to the alleged injury, and stated to him that Mr. Fountain said that the machine jarred his arm, which had been theretofore broken, and asked for a change of work; that he directed the employee to tell Mr. Fountain that he could work at the edger. At the conclusion of this evidence for the plaintiff the court granted a peremptory instruction for the defendant. We think it was error for the court to peremptorily charge the jury on the facts in this case to find for the defendant. If it be true, as the plaintiff testified, that the standards used to hold the lumber in place were insufficient in strength, and if, as he testified, there was further available material which would make the standards safe, and if the dolly was overloaded to the extent of making it dangerous, as the plaintiff testified it was, these were questions to >be submitted to the jury under proper instructions.

For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.