*1 181 сases, supra ; Louisiana ger Oglesby, the recent v. App. So. 602, Morgan’s, 18 La. etc., Co., Chanson v. (La. App.), 29. 139 So. Lbr. Co. Barber v. 647 ; Suggestion overruled. of error Williams.
Russell v. 1933.)
(Division B. Oct. 30694.] So. 528. No. [150 *2 (Division 1933.) B. Dec. 30694.] 372. No.
[151 So.
*3
opinion,
For former
Cephus Hattiesburg, appellee. Anderson, *6 Argued orally by appellant, Smith, for and Luther A. by Cephus appellee. Anderson, for
Ethridge, opinion J., of court. P. delivered brought plaintiff Tom suit in the court Williams, below, against appellant, Bussell, E. E. and Bawls, one appellee personal injury by a in collision be- received a being by by a tween truck owned E. E. and driven Bussell, employеe Carpenter, Mr. E. E. Bernard an Bussell, upon plaintiff (appellee riding here) which on the was running board. judgment against
There a E. E. Bussell for two was judgment thousand and in dollars, a favor of in Bawls, the court below. day injury, by
On the of the the truck Mr. driven Car- penter riding was with filled laborers to their work on a being by viaduct constructed Mr. E. E. Ham- Bussell, in per along traveling Hardy Park, and, while a street, main thoroughfare Hattiesburg, Mississippi, being there an- entering Hamper Carpenter other street Park, Mr. turned Hamper Following Hardy into Park. on street was a by attempting ear pass driven Bawls who to on the person left-hand side. in traveling Bawls and another were college direction of the greater state at a somewhat speed rate of pаss than the truck, desired to but truck, the truck going turned into the street into the park giving any signal without of his intention to turn, and the collision occurred, as a result thereof. testimony persons
The riding Bawls and the with him was to the effect that truck Hardy from turned interseсting street into the going street south without giving signal any turn, intention to a kind of Ms they slowing the truck without when saw down; that, turning going sharply, intersection rather not behind the intersecting Rawls to turn his car to tried street, breaking but truck ran his car, into left, injuring glass in rear Miss a Brown, side doоr and passenger they in Rawls’ ran across the curb car, trying they avoid the and that collision, and ditch to were not at fault in reference the collision. testimony The of some witnesses who were near the place injury the effect wаs to that Mr. twenty-five traveling per at miles and turned hour, Kamper entering giving into Park the street without signal, holding or hand indicate out his intention his They plaintiff, to turn. stated that the Tom Williams, jumped was on the board, off, knocked edge of in the and fell at the off, collision, ditch, *7 breaking his arm. approaching
Another witness testified that he was the place injury belonging high- of the in a truck to the state way department; signal being given that he no saw of Mr. Carpenter’s intention to turn; that he saw the collision, plaintiff but did not see the until he was within two оr ground falling position: three feet off in the that there negroes being by were a in number of the truck driven Carpenter. Mr. testimony plaintiff
There was further for the to ef- the plaintiff fect that the which laborers, was were one, working on a were viaduct, and directed to assemble at glass Carpenter Mr. and that house, the directed the get transportation laborers to the truck for into to their injury, work, and on the occasion that, of the he had di- plaintiff get running rected the to the оn board, the truck being being plain- full, and there no room therein for the except running Carpenter tiff on the that board; Mr. superintended right them, and had the to hire and dis- charge and to them them, direct when Russell Mr. not was frequently from the present; absеnt that Mr. was Bussell days. long as two job as several and sometimes hours, for previously dis- been that he had Plaintiff also testified Carpenter. charged by Mr. and rehired Mr. Carpenter that testified both Messrs. Bussell and having Carpenter control over ho laborer, awas mere wages paid as the was same those and that he laborers, negro operated mixer, a concrete laborers; the that he plaintiff gravel Mr. Bussell mixed; be that rolled to any nobody charge had au- in and that work, was thority not ab- that it was them his absence, to direct in they solutely necessary, what' tell them to absence, his during’ period tem- Mr. Bussell was were to porarily when do Carpenter not direct Mr. did absent, that Carpenter fired hired them. that he nеver Mr. testified anybody job Bussell. on the for Mr. testimony argued appellant is in-
It is for the Carpenter liability, awas mere sufficient Mr. to show responsible not for fellow and that master is servant, driving negligence, any, truck. his if plaintiff testimony sufficient We think was go jury question Mr. whether Car- to penter to the as to on the superior exer- a fellow foreman servant, or a cising jury right master. The had the functions of a pass question, upon they in favor this found plaintiff, thereon. Williams,
Taking plaintiff’s testimony jury as true, as thе negli- found it to under facts it case, be in this gence plaintiff for Mr. to direct the stand upon doing the risk of board, as so neces- sarily passing very great, might for the reason that cars *8 injure might a occur. It him, or collision evident that, is running board, if he had not been on the on the occasion injured. question, in have he would not been Some for of the defendant witnesses stated that the plaintiff, in there was room truck for the the Williams, the Carpenter not direct that did claimed he Mr. know plaintiff did nоt hoard, and to on ride merely presents in a conflict he was on but this it, jury. of the evidence for the decision negligence make the to for the truck it We think was holding, his out turn, to, as testified without the driver giving signal Mr. turn. or intention to some of his hand, of witnesses number did, testifies that but a he point. upon testimony contradicted his this urged the truck under It is here driver of duty traveling people keep no him. to a for behind lookout constantly looking required keep A be- is not driver to persons traveling him but one turn- rеar, hind ing for go signal highway give some of his into a should intersecting get turn, intention to street so as to into the purpose. notify or such road, and to of other travelers complained given It is certain that instructions plaintiff are we this contention has think erroneous, merit. The follows: “The first instruction reads court as jury plaintiff you instructs the from for the if believe that preponderance testimony of the that this case as a any, negligence, result if the defendants, plaintiff injured, your either оf them, then is it duty plaintiff.” sworn find for Instruction No. 3 as follows: “The court in- reads jury plaintiff structs the for the that neither of de- escape liability fendants in case can this because of mere contributory negligence, any, plaintiff, provided if of the yоu preponderance believe from a of the evidence that, negligence, as a or any, result if of the defendants, ’’ plaintiff injured. either them, giving The these two instructions was erroneous, but not does found constitute jury error, reversible because against
for Rawls. If the verdict had been both of them, it would have been error. reversible
The fourth instruction reads as follows: “The court further jury instructs the plaintiff you if be-
191 preponderance lieve from a evidence case the this .of riding plaintiff that the automobile truck on which was negligently turned to left of center highway reaching street or before a intersection, street any, proximate if plaintiff and as a of which result injured, then E. E. defendant, Russell, the owner you if believe truck, he was the owner thereof, is damages plaintiff injury liable in for such he as has any, proximate if sustained, as a direct result .there- of.” fifth
The instruction reads follows: “The court in- as jury plaintiff you structs the for the that if believe from preponderance a of the evidence in this case that the de- employed E. E. fendant, one Russell, as fore- supervise man to direct and the work of the laborers, then negligence, any, Russell would be liable for the if Carpenter.” said
If the driver of the in the truck, case at bar, Mr. Car- penter, plaintiff, a fellow servant with then, under the doctrine announced the case of Great Southern Lumber Co. v. 137 Hamilton, Miss. So. 787, there liability would be no on E. E. master, for the Russell, injury. giving
For of these last two instructions, the case must be reversed remanded a new trial. given The plaintiff instructions for the should be care-
fully scrutinized and redrafted so as to conform to the law.
The fact that the defendant secured instructions on the proposition same contrary given plain- to those for the tiff giving would not cure the error in the in- these plaintiff. contradictory structions for Mere instructions do not cure erroneous instructions. together
Instructions, course, are to be taken being considered a supplementary as whole, one an- merely other, where upon but, an instruction is not silent proposition, directly contradictory a but is to an instruc- given opposite party, tion the error is not cured. judgment For the errors be indicated, will reversed cause remanded for new trial. Reversed and remanded. *10 Suggestion oe Error.
On opinion suggestion J., Griffith, delivered of the on court of error.
Appellant contends that we have should and reversed testimony showing dismissed because, first, there is nо superior by any that express awas foreman authority of it Russell, and that is not sufficient that the alleged superior agent position, citing assumed/ such Gulfport Mississippi & Coast Traction Co. v. 118 Faulk, superior agent 894, Miss. 80 So. 340, de has occupying pоsition. clared himself as that v. Therrell Ellis, 83 35 Miss. 494, true, So. 826. but, This is if the show, facts as some of evidence here did show, that period alleged superior over a considerable timé acting knowledge foreman had been with as such and principal, prinсipal consent of his much is as bound thereby authority expressly as if the were It conferred. by therefore a matter fact becomes to be determined jury whether that had course of extended conduct length knowledge over a sufficient of time and the principal sufficiently by had been full to amount action knowledge, equivalent authority and actual con by ferred words. appellant
The
contention of
even
that,
second
is
if Car
penter
superior
injury hap
was in fact the
foreman, the
pened
purely
in a matter
of administrative
detail,
apply, citing
that
the fellow-servant
rule would still
Lagrone v.
7 So.
592,
Railroad
67 Miss.
Co.,
432,
304,
Hercules Powder Co.
145 Miss.
110
Hammack,
v.
193
676.
also,
So.
Southern Lbr.
v.
See,
Hamilton,
Great
Co.
opin
55,
Miss.
So. 787. Our decision under the
point,
hy
ion in chief rests,
to this
on
shown
as
the facts
disputed,
although
some of the witnesses,
that the su
perior agent
appellee
directed
to ride on the
brought
operation
board; and thus
into
there is
line
which
cases
established
rule that
fellow-servant
application
doctrine has no
where
to a case
the servant
by express
superior
is,
direction of
master or his
agent, put,
employee
employment
an
after his
for
as
day
actually
place
begun,
has
which
been
is not
reasonably
employment.
pursuit
safe for the
of his
This
principle
by many
is
cases, as,
instance,
illustrated
Refining
Gulf
Co. v.
165 Miss.
Appellant place, says, foreman in if thе that, the third appellee running negligent requiring to in ride on by interrupted negligence insulated board, this subsequent negligence the truck which driver of independent, intervening, cause, efficient was an position negligence thereby original relegating to if occurrence that, rule 'of a cause. The is remote might reasonably intervening been have an- cause interrupt intervening ticipated, will not cause such injury. original and the cause connection between through acting р. his master, 934. Since the J.,C. plac- Carpenter, Carpenter foreman, was a if foreman, ing by appellee what is bound board, on the likely anticipated as have and there foreman should then foreman happen, this follow in cаse it must would anticipated truck the driver of that must have danger thereby signal giving any be turn without injury appellee, causing said fore- because the an person that as driver did who later man very the identical just Certainly thing. than he it no more is anticipation of he himself later what an should be held to emergency he later acted. being under which did; there no Suggestion of error overruled. Hytken. Superintendent Banks,
Love,
v.
1933.)
(Division B. Nov.
30802.]
No.
[