*1 swearing “wilfully, know- elements that the false was inly, corruptly” done; that is to be observed it may they jury, even nevertheless with before accept reject part part.
Suggestion of Error Overruled. R. v. Fields. M. V. Co.
Yazoo & (Division April 22, Suggestion A. June of Error Overruled 3, 1940.)
[195 34116.] So. 489. No. *2 3, 1940.)
(Division A. June [196 34116.] No. So. Vicksburg, Foster & Robinson of W.
Dent, V. Ward, Craig, Chicago, both Lucius E. E. C. Illinois, McKay, Roberson, Frank and Clinton H. Burch, F. Jr., appellant. Memphis, all Tenn., *4 Chaney Vicksburg, & Clem- Oulkin, & and Clements appellee. Rolling ents, Fork, for *5 Argued orally by McKay, appellant, H. for C. appellee. W. H. for Clements, opinion the court. J.,O. delivered the Smith, against appeal judgment from This premises negligently permitting it on its set out fire *6 appellee premises a consume and to enter the of the gin plant thereon. cotton house and Anguilla appellant’s north runs and The at railroad appellee’s gin the west of on the the is side and south, spur-track rail- the main line of the leaves railroad. A gin yards and runs of the about hundred north road two ground gin. passing feet of The within a the few south, spur-track covered the line was between main and this dry ground grass also the on as was weeds, with and day gin M. of the on nine A. which the was. About gin appellant’s fore- the section the burned, which was grass helpers, fire the between set with several man, clearing ground purpose of the the the two for tracks, They with- eleven M., therefrom. left there around A. completely extinguishing the event as determined, out, the fire after the grass between the tracks had weeds and parties, M., At twelve other been consumed. about A. including appellee’s gin fire in the saw foreman, Saxon, ap- places along spur-track, the the but not on several pellee’s premises. put all out of Saxon some but premises. easily He could have the fire and left the danger put of of it and we will assume that its all out, apparent. crossing spur-track Later was then in the spur-track fire the stroyed the crossed the and de- afternoon, gin plant. appellee’s the house and appellant argue only their for two of Counsel the as- signments of error. granted ap- That the
1st. the court below have should pellant’s request liability; a for directed verdict of no 2nd, and if mistaken in the court in re- this, erred requested by plaintiff. fusing another the instruction support by of the The rule law invoked requiring of both of these one, instructions is that after injured being by to exercise reasonable care another, injury. by damage The the him the caused diminish argument appellee’s gin foreman, the Saxon, that, is gin appellee’s prevented burning* the of have could spur-track by putting it crossed the fire before out thereby appellee’s premises avoided entered the appellee’s resulting damage property, which for to the responsible. appellee servant of her conduct Torts, Sec. in Rest. that stated invoked is The rule person (2), “Except as stated Subsection 918: injured by to recover is not entitled the tort of another have avoided harm he could such as the tort.” commission use of care after the due wrongfully applies injuries inflicted, to all This rule of a contract, a tort or breach means of whether plaintiff contributing to his conduct of not with deals consequences injury, failure to avoid but with his injury diminish to avoid or inflicted, his after it has been strictly injury. Injury, damages resulting from his *7 right against something speaking, the of done “means damage party, producing damage, the whereas is the by of the sustained reason or loss detriment, harm, injury.” section 15. 1 J. Actions, C. S., plaintiff’s injury a constitutes The infliction of his damage money the amount of and his is of action, cause Negligence contributing by him therefor. recoverable necessarily injury, of con- infliction an course, to the of damage injury the therefrom, the sustained to tributes negligence damage, being but of the contribu- the cause negligently injury, ting fail- of an to infliction the injury damage ing reduce the of to after the infliction an by producing thereby, governed different are rules caused at common The first of these rules, results. different cause of action in the existence of a the law, determines plaintiff provides thereto; the deter- a bar second and, — plaintiff damages the can recover. the of mines amount rules is set forth in these two distinction between The by Rest. invoked 918, 4, Torts, section vol. Comment a, ‘‘ appellant. The rule in this there said: stated It is the 733 in distinguished rules the stated from to he Section is neg- contributory dealing with vol. 463-496, II, sections person ligence. with harm a threatened stated, As there negligent entitled is not of another conduct from the damages if he to use failed from other such recover for to subject being to the this avoid such harm, due care to . . . qualifications Sections. in those stated various applies rule stated in this Section the hand, the other On only the exis- and not to the diminution of to of action.” tence of a cause through negligence him the which Saxon,
The with appellee, charged, exercise care failure to due here is a is spur- appellant’s crossing prevent the from to the fire destroying appellee premises the of the track into prevent gin failing the exercise due care to to her —in appellee’s injury he discovered after infliction of danger governed His conduct therefore thereof. negligence contributing by relating to the the law to Company McKay, injury; R. v. of an Illinois C. infliction 1181, 447; 51 section 139, So. C. J. Miss. contributory negligence The law rule bars common person property recovery injury an or has for to changed 511, 1930, in State Sec. Code of been this brought provides: In all actions hereafter which personal injuries injuries, where such have or resulted injury property, person death, the fact or for' that the injured, property, person having or owner or may property guilty control have been over con tributory negligence recovery, but shall bar dam ages jury proportion shall diminished be negligence person the amount of attributable to the in *8 property, person, having jured, the the or the owner of or precludes property.” control over This section the the appellant pass liability. from a directed verdict of no In ing merely on this we have but instruction, assumed, purpose argument, the of the that conduct con Saxon’s appellee’s injury. to the tributed infliction of the appellee The other the instruction refused submitted jury negligence question in- the of Saxon’s to the they appellant if the it to return a verdict for structed gin fail- a result the believed “that the was burned as plaintiff’s employee put after to fires ure of the out said proximity gin. being discovering to in close the their properly the .” refused for . . instruction was ’This negligence, if as hereinbefore reason Saxon’s that, said, recovery only appellee any, en- from but did not bar the titled the the sus- a diminution of to appellee proportion in to the amount of the tained negligence attributable Saxon. .to
Affirmed. Suggestion of Error.
On sug- opinion J., delivered the of the court on Griffith, gestion of error. original opinion
In our attention to the dif- called we injured party ference between the rule when an to fails damage reasonably avoid further far can after so he as part injury in rule which has been inflicted, and applies injured party when the to take reasonable fails injury part care avoid but of which threatened no yet happened negligent has at the of his failure; time negligence and we that in the con- said latter case is tributory under our Section Code and, statute, 511, 1930, complete original affords no defense favor of the wrongdoer.
Appellant suggestion in its of error now contends that impression were we under mistaken when we said that, negligence part at the time of the asserted on of Sax- appellee’s intercepting on, it not had foreman, fire, appellee’s ap- premises; at that time reached pellant urges testimony undisputed now that the is already upon at the time the fire had reached and was appellee’s property adjacent gin. quote to the We here page appellant’s original printed from 17 of brief: plaintiff’s property “None had been touched up premises.” fire the time left Saxon it So *9 position appellant taken one to has as the facts original position argument, in its reverse re- and suggestion spect the same facts in its error. position appellant But the reversed which now takes appellant, aid under as if does record made, already gin premises had the fire reached was upon appellee’s private property, she that case would be at damages, entitled to recover least nominal enough peremptory that in itself avoid instruc- tion. recent case, See the Brewer v. Universal Credit Miss., 902, So. authorities Co., therein cited. only requested by The instructions were proposed any right those which recovery an absolute bar to given requested at there all; was none or which any theory submitted of diminution of under either of rules mentioned herein.
Suggestion of error overruled.
Fortenberry Herrington. v. May 13,
(Division 1940.) B.
[196 34117.] So. No.