*1 properly also think venue We the crime was county in Wilkinson laid under section 1186 the Code appellant, 1930. The under could section, have county. indicted been in either Wilkinson or Jefferson by appellant in license mailed Wilkinson coun The ty Virginia D. Rowan in and received coun Jefferson ty. by correspondence The was consummated contract county county. originating going into another one judg- case, find no error in the We reversible ment is affirmed.
Affirmed. Bradley.
National Box Co. v. 1934.)
(Division 14, May B. 31246.] So. 724. No. [154 *2 (Division 22, 1934.) B. October
[157 91. 31246.] So. No.
IT *3 opinion, For former see So. 724.
Whittington appellant. Brown, & of Natchez, for *5 L, Engle Fayette, O'orban, Jr., R. & Laub, appellee. Natchez, *6 appellant, Whittington,
Argued orally by for L. A. appellee. Laub; B. S. Ethridge, opinion J.,P. delivered the of the court. Bradley employed by appellant, Charlie Na- Company, injury by tional Box and suffered a serious having clothing caught part machinery, on a dragging inflicting machine, him onto the in- jury. theory injury how occurred His was that protruding inch there was a screw from one to one set *7 apron inch and which he wore in and that the one-half, pulled employment caught him screw and his on said set resulting rapidly revolving in- onto shaft, the juries. was shaft about two and He testified that the and that- this set screw floor, one-hal£ feet above the or a different sunk, or been either covered should have type customary it was and that of set screw used, sunk screws into kind such set to have business of this shafting, such manner that fixed or or covered, the working, would not be employees screw around such revolving had worked at caught that he and shaft, in the places or sunken screws covered where a number of proper way for and usual the that was were used, operated. on machinery work the went to He to such injured injury and was morning o’clock, at seven of the past o’clock. seven flfteen minutes at appellant appellant and the testified for the Witnesses appellee by injury the occasioned pleaded was that the machinery his hands with upon standing the block a up employee lifted for another him above to trim his finger appellee nails, and that the was at the time not, injury, employed of the in and about his master’s busi- theory appellant was ness. It also the that the machinery was four one-half feet above floor, the high employees. to breast the appellee’s employment handling
The was to assist fixing wood from cuts of which veneer to be was strips which cut made over and onto knives from the logs logs; being lengths approximately these cut into three feet. testimony was the that the
There to effect nurse em- give injured ployed the aid to em- first appellee, phy- ployees aid called a rendered first the appellee’s in which statement, state- took sician, standing on he a ment she claimed that stated he finger leaning'over machinery having his nails block appellee The denied this statement. trimmed. appellee was concluded, evidence
When plant go and'jury court motion a place injury company inspect oc- where box injury. machinery The which inflicted curred injuries had been removed which inflicted the machine operated, place machine another it was where from condition of the situation and installed, been had injury same were not the was inflicted where objected to and motion it This when occurred. was. attorneys gone had into The court. overruled prepare in the case when the instructions room judge presiding, special jury asked the members per- having *8 regular judge to be himself, recused the injuries place go oc- where the view the to and mitted attorneys the room and into the were called The curred. request in view them, jury’s and, to communicated granted time judge motion. At the request, the the this auto- objection or made. Vehicles done, was was no' this 2á jury divided and was
mobiles were secured, deputy placed the car, sheriff each a three cars with going appellee attorneys with the car, in one for the attorneys stenographer, judge for the and the trial and trip this the circuit but on car, in another the granting go re- In the court. with the did not clerk judge place, that no quest told them trial to view the jury place, testimony nor until the be at the would taken objection was made No to courthouse. was returned attorneys for the of the but one in court, time at the trip, during communicated appellant, time at some objections, judge would take privately that he trial to the into the dictated 'courthouse to the return and on the permitting judge’s ruling objections to the record objec- including injuries, in his place of the view the permit testi- complaint not did order tion the showing plant appellant’s mony be taken at to things in- time at the condition of and location juries. question
The to first determined, the one which controlling we think is here, is whether it was error, judge if and, so, whether it was reversible error, permitting jury plant make the order view the machinery. appears deputy judge It the circuit sheriffs present who court attended with the and that were jury among viewed and discussed themselves some- plant, place what both as to the the situation injury place machinery. The as to the employee pointed out some one at- machine were questions torney but m were asked for the defendant, by any person. objections and no improper "Wethink it judge permit for the go injuries, it because was not in the injuries. same condition as at the time How- ever, this is not reversible error because no *9 necessary it was think and we time, was made at the open time in court, to be made at for this right litigant parties have the was made. The order objections informed be case, in a know of per- they place, proceedings and it is not as of take all privately parties to state of the for one missible judge object us, case before In the later. he will that plant jury agreeable to view for the if it was not objections been made machinery, have thereto should parties in- concerned be open could all the where court, A objections therefor. reasons and the of such formed objections, light change of might party in the attitude his disposed involved. risk might to take the not be machinery being, legal The view of the agreed opportunity would afford an to, it for effect, jury to better conflicts in determine the the evidence. machinery up, things Just set of was that how light upon would throw a kind, conflicts the evidence, exactly although the situation was not In view same. advantage jury that the had the of an ocular the fact machinery, of the the case made for the demonstration appellee, plaintiff might strengthened. below, be The plaintiff contradicted a number evidence for the argued the verdict should not and it is that witnesses, contradictions, because of such be allowed to stand granted peremptory have been instruction should plaintiff was insufficient for the because the evidence plain- theory. for think evidence We sustain being to make a case is sufficient if as true, taken tiff, liability. might
There judg- some doubt as to whether the weight ment should on be set aside account of the applied evidence without the view. The rule is to be ordinarily caution, judge with because the is credibility of the witnesses. Some features of the appellant very convincing, evidence are not and, might with the view had it be discredited. opinion We are therefore not the evidence is overwhelmingly so- favor warrant setting ground. us in verdict on that aside the argued judgment is It that the should be reversed be- *10 with- cause the went to the scene the accident court having accompany and that this it, out the circuit clerk required. should have been It to have been over- seems nothing by parties. circuit looked all The clerk said going. should Of the clerk was said to him about course accompanied but this error, have the court resulting any contributing not not prejudice to result or any parties, will not be counted to testimony taken, to was reversible error. No nothing pres- required would have which done was error without therefore clerk. It was circuit ence of the prejudice or harm.
We have considered all the and find no instructions, judgment reversible error them, will there- affirmed. fore be
Affirmed. Suggestion op Error.
On opinion sug- Griffith, J., delivered the the court on gestion of error. suggestion
After the of error in this case had been by appellee requested court, considered spond was re- whereupon response in addition to thereto, applied by petition appellee court, to the trial and evi- reporter’s support to correct court thereof, dence transcript and to that record show that in fact no make prem- to a view the was made order therefor had until been made after ises inspection and returned had made the court and
27 previously or, if courthouse, made, it was in ap such a manner that neither the court nor counsel for pellee it heard or knew of it when made. Section 726, simple adequate 1930, Code furnishes a method for reporter’s transcript the correction of the court proceedings, if trial counsel fail to avail of that simple a valid method, excuse should be offered as petition predicate for a to correct the record after the transcript any has been filed in this court. And, event, application for correction should be before the submission of the case to this court. Brown v. Sut 120 petition 121 ton, 73, 820; Id., Miss. So. Miss. 86, 78, transcript 835. So. But this correct presented in until not the trial court the case had been ap court. It would decided this be intolerable party plications by record should either correct the it court;' after decision has be entertained applications expressly de that such after been decided McIntyre, 133; v. 53 Miss. too late. Ross cision here are *11 Cartledge, 333, 133 318, v. Miss. Union Motor Car Co. proceedings petition the to correct So. 801. The 97 suggestion transcript disregarded, and the are therefore original solely on record. the of error will be examined overwhelming urges great again Appellant or that the appellee, against'the and that weight of the evidence question raising should that for a new trial motion the may of view without the that, It be been sustained. have jury, by premises have place would we had the response judgment to the in this reverse inclined to been appellant; are bound but we of contention above-stated Sharp, Miss. 156 & v. by Co. in Kress stated as rule, has there R. where 167, L. 68 A. 650, So. 693, by premises place inspection of or or view been a any if there be jury evidence, on the reverse cannot we by witnesses testimony, sworn delivered substantial support carefully again ex- have "We verdict. of the properly say that there amined cannot record, we support testimony ver- of no is substantial sworn dict. importance and in most case,
In in this view the premises inspection or cases, regards on evidence the case on the as a review of among misunderstanding appeal, unfortunate regard happened actually counsel objections what against sought the allow- be made made or inspection it we deem desirable case, in this ance of the proper prac- upon some discussion we enter jury. inspections by court and as to or tice views Under section 2066, Code which is 1930, the statute dealing subject, with this the trial court is if seldom, obliged ever, to allow premises, a view of the and it would be a rare case that a refusal the court so to allow, error; successfully assigned could be here as for the stat expressly places ute such a refusal in the discretion of Thompson (2 trial court. Ed.), on Trials sec. 883. isNor court bound to allow a view because both parties request it or consent it. are There con delay, expenses, siderations inconvenience, distance, belong primarily which like, to the court to de parties, although party may termine and not to the a urge objection. heard to these matters in his And be very nearly a cause ap view when taken divests the pellate power court of its to-review the case on the evi request granted dence, a a for view should never be unless appears reasonably it certain that it will be of essential merely reaching aid, not aid, some to the cor distinctly impracticable rect verdict, that it is present jury inefficient to the material elements *12 photographs, diagrams, maps, and the measurements, like. Nor a should view be allowed when there have been changes premises,
material in the or as was ob original by opinion, served us in our and as was the sit pp. uation in case. citations 64 88, See the C. J., 89. allowing inBut order that error in trial in court, the inspection by may jury, a view and be availed of on the proper objection appeal, the must trial be made the jury departed court and before the court and have inspection, open make the and in such manner that, hearing judge opposing court and in coun- the they objection may sel, be then and made aware the transcript reporter’s shows that there made. The court appellant object to the view when coun- counsel for did requested appellee that the court then it, sel for first transcript request; part of trial that requested refused the jury that that when later the shows further they scene the counsel accident, be taken to view the objection objected appellant again and that his for by But on the the court. the view allowed overruled and judge hearing a trial made for new trial the of motion transcript, in which a also shown statement, jury, request was made that when the he recites “and courtroom into the for both sides called counsel he jury request stated that in told them request (he) motion sustain the would of that view objection this at made to further There was no a view. attorney stated defendant for the but that time, expected ob- his privately to renew court that he to regard judge jection.” the facts recites And the trial taking trip return view, con- his statement courthouse, to the court and reassembling upon at- “Promptly as follows: tinues into the record torney dictated defendant for the stenog- by which is reflected view to the rapher’s case.” in this
30 consequence in of which counsel for was bound again object open hearing to and in court and in of the the departure and court of counsel for other side and the the before taking if he intended to continue view, the upon preserve objection, to insist to it for review his and necessity here. We with the are, confronted therefore, reporter’s transcript to trial as decide whether the court objection to the time manner the renewal the by appellant is control or statement made to whether the by upon a motion for trial to trial new is court the prevail. question,
If we would be were think we this a new accept obliged say as true the state to that we must here pro judge recollection ments of the trial his sought ceedings when reviewed those statements to be positive here. The statute is the case definite, are as expressly empowers 1930, cited, section Code 726, above reporter’s judge, tran in the court the script when errors trial suggested to correct them. attention, are by implications judge it of the statute The trial is respect superior court placed in a station self reporter’s transcript, an odd situa would be and there that the think, however, We tion were otherwise. if it Gurley already been settled has as above rule, stated, 121 v. State, Turner 565; v. 101 57 So. 190, Miss. State, Humphrey Hardwood v. Crorow 404; 83 Miss. So. 68, accept must that we 690; So. so 490, 163 Miss. Co., quoted. judge above of the trial true the statements disappoint- misunderstanding embarrassing All been would have could matter about ment requests respect practice, proper had the avoided by and coun- jury, court been observed for views ap- this as an take therefore, we, sides, for both sel record, of this the state furnished propriate occasion, proper subject rules of upon of the further add regard. practice in that party request
aWhen is about to make a or view inspection premises or had be the court jury, party request must first the court retire jury. request inspection per- A that a view or presence should mitted, not be made in the request presence an because to' jury might prejudice jury against objector. *14 appellee As well in brief, admitted counsel for their “any lawyer experience trying jury of knows cases, injury upon objecting the he inflicts himself to a view having jury.” p. When, the 90. without first C. J., request jury the such a and in the is made retired, may generally presence judge jury, should of the the improperly with- made—and overrule it—because thus objection waiting unless the other side, for an from out join request. immediately in the of course the other side improperly request in the is made And when such a presence jury, then and court does not of the the improperly made, because thus it, at overrule there once any- immediately announce party does not and the other request, join thing will in the he will or not as to whether jury, judge retire the motion, of his own should, the request party opposite the retire- must do not, if he the request re- to upon fails court still the and if ment, objection party to jury make's his then tire the jury re- will constitute the to retire failure view, the the conflicting, strongly evidence if the error, versible made— or is not made view is for a order the whether compelled party to make judge the has the this because injury jury presence to his of objection the in the his reversible constitute order to inBut as aforementioned. objecting procedure, the regards of matter the as error, request of the retirement for (1) party make the must con- object The view. (2) jury, he must obliged, been party must have point trolling is in the it to make all, at make to in order party presence jury. objecting re- has Until the any previous quested jury, failures the retirement practice will be above stated conform to the rules of breaches; propriety but not as reversible considered as error. upon request acted in which the court
In this case the making came from view of the order for while counsel, and absence of members engaged preparing In instructions. counsel were calling upon back into the counsel case, such the court, request, acquainting should with the them courtroom and jury, motion, own court’s have retired the upon say anything requiring the sub- counsel before ject; upon then the this, court to do failure expected upon duty who counsel, incumbent became jury, object, request same in the the retirement if the re- results attendant and with the same manner party opposite quest had view been request litigation. whether words, other in the In litigant coun- from the or from comes for the view *15 request place, object expects first must, who sel complain because for reversal in order to the retirement' course, must, of and he a failure to retire any 'his event, make the second presence open inspection, in the court, view or opposing before 'judge counsel hearing premises, depart in default for the the court be as- cannot ruling court thereon trial which the signed error. in for the order
Finally, insists judge tried by special who spection could not be judge. regular The record by only but case, disqualified judge regular that the shows parties; hear by selected bar was a member 737, provided section as is cause, and determine Constitution 165, allowed section 1930, and as Code
33 1890. When, under those a member of sections, the bar presides, empowered upon he is to rule and determine all pertinent questions arising during the trial of the case, & Canal Bank Trust Co. v. Brewer, Miss. 885, 912, 113 So. 552, So. this, 127, course, includes the power upon request jury. to act for a view the
Suggestion of error overruled. et et
Blair McMillion v. al. al. (Division 24, Sept. Suggestion Overruled, 22, B. 1934. of Error Oct. 1934.)
[