Walker Bros. v. Nix

76 So. 143 | Miss. | 1917

Ethridge, J.,

delivered the opinion of the court.

T. H. Nix, a minor, was employed by the Walker Bros., alleged to be a copartnership and engaged in the operation of a sawmill in Clarke county,- Miss., and while so employed was assigned by a member of the said partnership to duties in connection with the sawmill business, and was directed in the course of his employment to hold a log on the carriage while the same was being sawed. It appears that the log carriage of the sawmill had appliances called “dogs,” which were fastenings designed to hold the log on the carriage while it was being sawed into lumber. Logs eighteen feet or more in length were fastened with one of these “dogs” at each end, but it was not the custom of the firm to use a “dog” in the middle of the carriage for such purposes, but where the log was under eighteen •feet it was only fastened at one end by means of a “dog,” and an employee of the company sat on the carriage and held the log with his hands. At the time of the injury the company was operating a boiler in which the inspirator had failed to work satisfactorily, and the water became low, and there was great danger apprehended that an explosion might occur, and at the time of the injury the boiler was making a noise, and on account of the apprehension and the noise plaintiff was looking at the boiler, and the log ran on the saw at the place where he was holding and severed three fingers from the hand of the boy, the appellee in this suit.

The defendant pleaded the general issue, and gave special notice under the' general issue that it would prove contributory negligence on the part of the plaintiff, and that at the time of the injury the party negligently turned his face away from the saw and was asleep at said time, and that the injury would not have occurred but for contributory negligence. It also filed a special plea of contributory negligence. It filed a plea also that there was no partnership between the Walker Bros, and the business was owned exclusively by Gr. E. Walker, one of the defendants, but this plea was not sworn to as required by section 1975 of the Code of 1906, and the plaintiff was not required to prove a partnership. It also pleaded in bar of suit a settlement for the injuries complained of for the sum of forty-five dollars. Beplication was filed to the plea with reference to the settlement, setting up that the agreement was made while the plaintiff was under twenty-one years of age and voidable, and also that the settlement was not understood, nor agreed, to be in complete settlement of the injury, but was merely to cover the item of doctor’s bill and loss of time during the time of the injury. There was a verdict for the plaintiff for two hundred dollars, and from the judgment defendants appeal and plaintiff takes a crossrappeal.

The evidence taken on the trial sustains the allegations of the plaintiff as to his contract and injury, and it appears from all of the testimony that at the time of the injury the plaintiff’s attention was attracted to the boiler by reason of the noise it was making, and also that there was general apprehension of all parties present that there would be an explosion of the boiler on account of the low water. "We think the evidence shows that plaintiff’s attention was attracted away from his duties by reason of the negligent operation of the boiler in its then dangerous condition, which was known to and recognized by all of the parties present, and that the conduct of the plaintiff in this particular does not constitute contributory negligence.

We thinlralso it was manifest negligence on the part of the defendant to operate its saw under the existing conditions, and that it failed to provide a safe place for its servant, this employee, to work, and that on direct appeal there is no cause for reversal, and the judgment on direct appeal is affirmed.

On the cross-appeal we think the verdict was manifestly insufficient, and wholly inadequate to compensate him for the injuries received, and on ■ cross-appeal the judgment is reversed, as to the amount of damages, alone, and the cause remanded for a new trial as to the amount of damages only.

Affirmed on direct, and reversed on cross, appeal.

Affirmed, reversed and remanded.