67 Miss. 260 | Miss. | 1889
delivered the opinion of the court.
This is an action by appellee to recover damages against appellant for injuries inflicted upon him by the servants of appellant by driving over him a loaded express wagon. The evidence of the plaintiff tended to show that on the night when the injury was received, he was walking along one of the public streets of the town of Columbus upon a footpáth on the side of the street, where pedestrians were accustomed to travel, and was overtaken and run down by the express wagon driven by appellant’s servant, which
Among other errors assigned is one to the action of the court in permitting the plaintiff to testify that he was a man of family, having a wife and two children dependent upon his labor for support. The record is contradictory as to what transpired in reference to this matter. The appellant reserved special exceptions during the progress of the trial, and then included them as a part of the general bill reserved to the action of the court in overruling the motion for a new trial. In the special bill the judge certifies that he overruled the defendant’s objection to this evidence, but in the general bill he certifies that the objection was sustained. In this condition of the record we cannot know what action was really taken.
The court permitted the plaintiff to introduce much evidence tending to prove that Timberlake, the driver of the express wagon, was an habitual drunkard, and habitually careless and reckless in driving. The defendant objected to the introduction of this testimony, unless the plaintiff would show that defendant had knowledge of such habits, and the court ruled that the testimony might be given, subject to exclusion, unless knowledge should be brought home to defendant. The position of defendant was that it was not
If the plaintiff was injured by the negligence of defendant’s servant, it must respond to him in damages, and cannot assign for error the unsuccessful effort of the plaintiff to prove what there ■was no need to prove, and which he was required to prove by an erroneous ruling secured by the defendant.
The appellant relies principally upon two points to secure a reversal of the judgment. First, that the evidence shows the plaintiff to have been guilty of contributory negligence; and, second, that the person in charge of the express wagon was the servant of All-bright, an independent contractor, and not of defendant.
It is sufficient to say that these are both questions of fact which were fairly submitted to the jury, and their verdict on each is supported by competent and sufficient evidence.
It is true that Albright, a witness for defendant, testified that Timberlake was his servant, and not that of the defendant, but he stated the facts on which he rested this assertion, and they support the finding that Timberlake was the servant of the company. Albright was paid by the company $90 per month for his services as agent; the company furnished a wagon, and Albright furnished and fed the horse, and employed the driver for which the company allowed him $45. The agreement was by parol, and its terms are not definitely stated, but it is not shown that the driver so employed was not the servant of the company though selected by
The position assumed by counsel for appellant that the plaintiff cannot recover punitive damages because not claimed in the declaration, is not maintainable. The plaintiff demanded $5000 damages for the negligent act of the defendant, under which it was competent to show the character of the negligence, and the extent of the injury inflicted. The jury were very fairly instructed as to the circumstances under which punitive damages could be awarded. The verdict is not excessive and,
The judgment is affirmed.
Counsel for appellant suggests error in our opinion in this ease, and supports his suggestion by the citation of two decisions of the supreme court of Indiana, R. R. Co. v. Burdge, 94 Ind. 46, and R. R. Co. v. Smith, 98 Ib. 42, and by the text of Shearman & Bedfield on Negligence, in which the substance of these decisions is accepted as the law.
Shortly stated, these decisions are that when in an action to recover damages negligence is averred, wilful wrong cannot be proved; and where wilful wrong is charged negligence, however gross, cannot be proved to sustain the averment.
We fail to appreciate the applicability of these decisions to the case in court. The plaintiff here has not sought to show any wilful wrong; his effort was to show gross negligence. In Indiana there seems to be a broad distinction between negligence and wilfulness.
We find no error in our former opinion and adhere to it.