Newton Oil Mill v. Spencer

| Miss. | Oct 15, 1917

Lead Opinion

Ethridge, J.,

delivered the opinion of the court.

Alonzo Spencer sued the Newton Oil Mill for personal injuries received by falling through a trapdoor in a platform of the plant of the Newton Oil Mill, alleging that the said trapdoor was attached to the floor of the platform by means of iron hinges which were old, rusty, rotten, defective, and unsafe, ■ and that when the plaintiff walked over the said door the hinges broke, causing the door to fly up, striking the plaintiff in the stomach, and bruising and injuring him; that the plaintiff had no knowledge of the defect in the door; that it was dangerous and in a bad state of repair, and was known to the defendant, but unknown to the plaintiff, at the time of the accident; and, further, that it was negligence in having in a floor a trapdoor in a rotten, unsafe, and in a dangerous condition. The defendant pleaded the general issue, and gave notice that it would offer to prove under the general issue on the trial that the plaintiff had been warned that the door in question was not securely fastened and cautioned not to step upon it, and that he (plaintiff) deliberately did so and caused his own injury, if any he sustained.

The testimony for the plaintiff shows that the trapdoor was situated in the floor of the platform fastened by hinges and had become in a dangerous and unsafe condition, and that while engaged in the service of the defendant, and while carrying a scantling for the purpose of prying up a boiler on the sidetrack to be unloaded upon the platform, he stepped upon the trapdoor, fell, and was injured, and that he had not been told of the trapdoor- or of its dangerous condition by any person. The testimony for the defendant defended upon the theory that the plaintiff had been specially cautioned as to the unsafe condition of the -trapdoor, and cautioned not to get upon it, the foreman of the defendant stating that he so told the plaintiff, and that he called to another employee just before the accident to bring a hammer and .nails for the purpose of fixing the trapdoor; that he had stepped upon it, and had seen its dangerous condition, and was preparing to repair it; and that the defendant had just recently acquired the property, and was doing general repairs upon the property at the time. The plaintiff testified that he was confined to his home abóut four weeks, and that he was permanently injured, and was unable to do heavy work any more. He introduced Dr. Monroe, who had examined him some four weeks after the injury as to the bruise which he received. The defendant sought to introduce Dr. Cooper, who attended plaintiff after he was injured, but the plaintiff objected to Dr. Cooper’s testifying, and his testimony 'Was- excluded.

The appellant assigns for error the exclusion of the evidence of Dr. Cooper, and the giving of instructions Nos. 1 and 2 for the plaintiff. Instruction No. 1 is as follows:

“You are instructed that the trapdoor in the floor of the platform, through which plaintiff fell, was inherently dangerous; and if you believe from the evidence that the plaintiff did not know of its being dangerous, then you must find for the plaintiff.”

If there was a question as to whether or not the door was safe at the time of the injury, this instruction would be error; but the defendant admitted the dangerous condition of the door, and based its defense upon the theory that the plaintiff was cautioned not.to get upon it. So, telling the jury that the door was inherently dangerous did not constitute error in this case.

The second instruction is as follows:

“You are instructed that it is the duty of the defendant to prove by a preponderance of the evidence that the plaintiff had notice of the dangerous condition of the .trapdoor through which he fell.”

This instruction merely tells the jury that the burden is upon’the defendant as to contributory negligence; the defense being specially pleaded that the injury was caused by plaintiff going upon the door with knowledge of its dangerous condition, after having been cautioned not to do so by the dafendant. There is no dispute about the fact that the plaintiff fell and was injured, and this instruction was not prejudicial to the defendant’s rights.

With reference to the testimony of Dr. Cooper,- this question has been settled adversely to the contention of appellant in the case of Yazoo, etc., R. Co. v. Messina, 109 Miss. 143, 67 So. 963.

The judgment is therefore affirmed.

Affirmed.

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Concurrence Opinion

Stevens, J.

(specially concurring). I concur in the result reached by the court in this case.