Opinion
No. 33362.
October 24, 1938. Suggestion of Error Overruled December 5, 1938.
1. NEGLIGENCE.
Where it is shown that the accident whereby the injury was caused could not have happened except for the defective condition of the appliance complained of, the doctrine of res ipsa loquitur applies.
2. NEGLIGENCE.
Where the declaration charges specific acts of negligence, instead of charging negligence generally, the doctrine of res ipsa loquitur must be limited to creating a presumption in favor of the negligence charged in the declaration.
3. MASTER AND SERVANT.
In action by employee against employer for injury sustained from a falling beam in a cotton mill, where petition alleged accident was caused by chain being worn on pulley of block and tackle and other causes not known to employee but known and understood by employer, allegations did not limit charge of defective conditions to question whether chain and flanges of block had become worn, but employee was entitled to benefit of any defective condition in mechanism of hoist.
4. NEGLIGENCE.
Generally, plaintiff is confined in his proof to those specific acts of negligence charged upon theory that defendant is entitled to be apprised as to ground of negligence relied upon for recovery, but rule does not require that plaintiff specify in what particular part defect is located in a complicated appliance; it being sufficient if allegation specifies defective appliance of which complaint is made.
5. MASTER AND SERVANT.
In action by employee against employer for injury sustained from a falling beam in cotton mill, where it appeared that beam had fallen to floor a week before, question of what would be a reasonable time to allow employer for making repairs was for jury.
6. APPEAL AND ERROR.
In action for injuries sustained from a falling beam, where employer's defense in trial court had been that no promise to repair had been made and that no repairs were needed, on appeal the Supreme Court would not consider contention by employer that a reasonable time following a previous accident should be allowed for making repairs.
7. MASTER AND SERVANT.
In action by employee against employer for injury sustained from falling beam in cotton mill, where it appeared that another hoist had been used on former occasions and that employer could have caused the beams to be moved by other means shown to be in use at similar mills, whether employer was negligent in requiring employee to continue the use of the particular appliance pending delay for an alleged promise to repair was for jury.
8. MASTER AND SERVANT.
In action by employee against employer for injury sustained from falling beam in cotton mill, where it was alleged that accident was caused by defective hoisting equipment, employee did not assume risk incident to operation of the equipment if employer was negligent in requiring its use (Code 1930, sec. 513).
9. EVIDENCE.
An X-ray technician who was not a physician or surgeon, and who had never taken courses in anatomy, but who had 15 years' experience in reading and interpreting X-ray pictures, was competent to testify that the pictures disclosed fractures of the vertebrae, although not competent to express an opinion as to what caused condition shown.
10. APPEAL AND ERROR.
Supreme Court will not substitute its own judgment for that of jury as regards amount of damages in personal injury cases, except where amount awarded clearly indicates jury was controlled by passion, prejudice, or corruption.
11. DAMAGES.
$5,000 was not excessive for injuries sustained by employee in cotton mill when heavy beam fell on his back.
APPEAL from the circuit court of Yazoo county; HON. JULIAN P. ALEXANDER, Judge.
Watkins Eager, of Jackson, and D.E. J.T. Crawley, of Kosciusko, for appellant.
Appellant was entitled to a peremptory instruction in that appellee entirely failed to sustain his burden of proof that the cause of the injury was the negligence of the appellant and failed to prove any cause of the injury and any defect in or unsafe condition of the apparatus whatsoever but merely proved an accident.
Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236; Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127; A. V. Ry. v. White, 106 Miss. 141, 63 So. 345; Huff v. I.C.R. Co., 199 N.E. 116; I.C.R.R. Co. v. Jones, 16 So. 300; Schneider v. Pevely Dairy Co., 40 S.W.2d 647.
A master is not liable for the failure to remedy a latent, hidden defect which was undiscoverable with reasonable care. The burden of proof in this case was upon the plaintiff to prove some imperfection in the apparatus which should have been discovered by the defendant and remedied. The only conclusion from the entire absence of proof of any imperfection or defect by plaintiff is either that there was no such defect or that if in fact the apparatus was defective, the imperfection was hidden, latent and undiscoverable.
Appellant was entitled to a directed verdict for the reason that the evidence of appellee himself shows that defendant was not negligent in failing to exercise reasonable care in supplying reasonably safe apparatus, in that appellant did not have a reasonable opportunity after acquiring knowledge of the alleged defect to remedy the same.
Magnolia Pet. Co. v. Stoddart, 83 S.W.2d 1047; Thompson v. Power Co., 73 S.E. 888; Rolling Stock Co. v. Weir, 11 So. 436; Hurst v. Railroad Co., 63 S.W. 695, 85 Am. St. Rep. 539; Indiana Union Traction Co. v. Long, 96 N.E. 604; Jennett v. Louisville N.R. Co., 162 Fed. 392; 3 Labatt, pars. 1009, 1010 and 1011.
Mississippi authorities agree that where there is no negligence on the part of the master that then in spite of our statute, an employee assumes risks incidental to the employment since the master is only liable for negligence.
Eastman Gardiner Hardwood Co. v. Chatham, 151 So. 556, 168 Miss. 471; Anderson Tully Co. v. Goodin, 174 Miss. 162, 163 So. 536; Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Newell Contracting Co. v. Flynt, 161 So. 298, 743; Seifferman v. Leach, 161 Miss. 853, 138 So. 563; Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 99.
Appellant was entitled to an instructed verdict for the reason that appellee's own evidence showed that the alleged defect in the machinery, if it existed, which is denied, only furnished a condition making the injury possible and that the proximate cause of the injury was the subsequent independent act of the servant in voluntarily working without sufficient assistance without the knowledge of appellant.
Batson Hatten Lbr. Co. v. Thames, 114 So. 25, 147 Miss. 794; Cobb Bros. Const. Co. v. Campbell, 107 So. 283; Buckeye Cotton Oil Co. v. Saffold, 87 So. 893, 125 Miss. 407; Eastman Gardiner Hardwood Co. v. Chatham, 158 Miss. 471, 151 So. 556; Railroad Co. v. Daniels, 73 Miss. 258; Hardaway Contracting Co. v. Rivers, 180 So. 800.
Undisputedly, the proximate cause of the particular injury here complained of was not the negligence of the defendant, or, certainly, not the negligence sued for, and we respectfully submit that appellant was entitled to a directed verdict.
There is insufficient evidence to support a verdict of $5,000 in that such a verdict can only be sustained upon the basis of a permanent and serious injury; a finding of such serious injury by the jury must be reversed in that there is insufficient evidence to sustain the same.
Beard v. Turritin, 173 Miss. 206, 161 So. 688.
We respectfully submit that under the following authorities, the testimony of Mr. Palmerlee, merely a raditechnician was inadmissible and that the verdict cannot be permitted to stand on the testimony of Dr. Anderson alone, admittedly not a radiologist or an expert, when in direct conflict with the positive statements of three expert radiologists.
Maloy's Legal Anatomy Surgery, page 729; Wigmore's The Science of Judicial Proof (3 Ed.), 1937, pages 475, 477 and 478; Saas v. Hindmarsh, 184 N.Y. Supp. 467; Liles v. Hannah Pickett Mills, 150 S.E. 363.
The verdict of the jury is upon all questions upon which liability rests, clearly against the great weight of the evidence.
Barbee v. Reese, 60 Miss. 906; Beard v. Williams, 161 So. 750, 172 Miss. 880; Clark v. Moyse Bros., 49 So. 721; Columbus, etc., R. Co. v. Buford, 116 So. 817, 150 Miss. 832; Fore v. I.C.R.R. Co., 160 So. 903, 172 Miss. 451; Justice v. State, 170 Miss. 96, 154 So. 265; McFadden v. Buckley, 53 So. 351, 98 Miss. 28; Mobile O.R. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Mobile O.R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; Sims v. McIntyre, 8 S. M. (16 Miss.) 324.
Barbour Henry, of Yazoo City, for appellee.
The negligence alleged was overwhelmingly proven.
Appellee has not shown what might have caused his injury, but has shown, with no substantial contradiction, the only reason it could happen was the slipping and finally falling of the beam due to the worn and defective condition of the grooves, which was repeatedly brought to appellant's knowledge, and finally with a promise to repair. The proof brings the case clearly within the doctrine of res ipsa loquitur.
G. M. Coast Tractor Co. v. Hicks, 116 Miss. 164; Waddle v. Sutherland, 156 Miss. 540; J.C. Penny Co. v. Evans, 172 Miss. 900; A. V. Ry. Co. v. Groome, 52 So. 703, 97 Miss. 201; 2 Labatt, Master Servant, sec. 834; Potera v. City of Brookhaven, 49 So. 617, 95 Miss. 774; Godley v. Hines, 86 So. 289, 123 Miss. 560.
The transcript shows the superintendent was kept constantly informed of the defective condition of the hoist.
There was never any intention to repair, and no effort ever made, up to the time of the injury February 14th.
Under the proof, the appellant could not leave so dangerous an instrumentality for daily use, with the knowledge of it having fallen, without being guilty of the grossest negligence.
The defect which appellant claims was only discovered one week prior to appellee's injury, had, by the appellee's proof, existed since the summer of 1937, and continuously, and the alleged repairs of December, 1937, had not remedied the trouble, and according to the undisputed proof, the cause was easily discoverable by a reasonable inspection (even if the unsafe condition had not been indicated by the slipping and sometimes falling of the beam). Certainly the condition had existed long enough to constitute constructive notice (omitting the evidence of repeated notice to the superintendent). Aside from all this the testimony of Reed, the expert (and which was not even sought to be denied) that the trouble which "frequently" occurs in this kind of hoist is the wearing of the gear which the chain winds on, and allows the hoist to drop. This he testified is "very easily taken off and replaced, and they are replaced frequently." Therefore, the negligence was long antecedent to the time the hoist fell one week before appellee's injury, and this identical issue was carefully submitted to the jury under the instructions.
The Mississippi statute, Section 513, abolished the assumption of risk, and the appellant continued negligence after the fall of the hoist a week prior to appellee's injury. Under the common law, the appellee, after knowledge of the falling of the hoist, would have continued to operate it (omitting now the promise to repair) pending the repairs, or replacement of new parts, at his peril. But under the facts discussed, negligence of appellant appears manifest, from long period of slipping and long absence of inspection, which, by virtue of the defect would have been disclosed, and therefore there was no assumption of risk by appellee, and the issue was accurately submitted to the jury.
The testimony of the appellee showed unmistakably a promise to repair, reliance thereon by the appellee, and continuance at the work for the period of time within which appellant's proof shows was necessary (ten days) in which to get and install the new parts, and within which time injury occurred, as a result of the defect covered by the promise.
3 Labatt on Master and Servant (2 Ed.), par. 1009; Miss P. L. Co. v. Smith, 169 Miss. 447; Miss. Utilities Co. v. Smith, 166 Miss. 105.
The proximate cause of the injury was the failure to furnish a helper.
R.R. Co. v. Wright, 135 Miss. 435; Russell v. Williams, 168 Miss. 181; Superior Oil Co. v. Richmond, 172 Miss. 407; Miss. Cent. R.R. v. Alexander, 169 Miss. 632.
The evidence is insufficient to sustain a finding of permanent injury.
Whether a witness is competent to testify as an expert is a question primarily addressed to the sound discretion of the court, and his decision is ordinarily conclusive.
Liles v. Hannan Pickett Mills, 197 N.C. 772, 150 S.E. 363; Ladlie v. American Glycerin Co., 223 P. 272; Whipple v. Grandchamp, 158 N.E. 270, 57 A.L.R. 974; Beard v. Turriten, 173 Miss. 206, 161 So. 688.
In view of the appellant's concession that if the jury was justified in finding that appellee's vertebrae was fractured, the verdict for $5,000 is not excessive, we have refrained from burdening this brief with a long citation of authorities, the long list of cases decided by this and other courts holding that a verdict for a much larger sum would not be regarded as excessive.
We content ourselves with calling attention of the court to the case of Mississippi Central Railroad Co. v. Alexander, 169 Miss. 620, in which this court, speaking through Chief Justice Smith, held that $10,000 for injuries consisting of either broken or dislocated spine necessitating steel brace or adhesive tape to alleviate pain, and disqualifying the injured person from labor, was not excessive.
Appellee recovered a judgment of $5,000 in the circuit court of Yazoo County for an injury sustained while he was attempting to lower a large beam, suspended by a block and tackle, which was being operated by him in the cotton mill of the appellant, and which fell to the floor on account of the alleged defective condition of such appliance. The beam in question, which weighed approximately 500 pounds and was about 6 feet in length, had been conveyed from the weaver room of the mill, by means of this block and tackle, known as a Yale and Townes hoist, into the room where the accident occurred, and where it was being lowered to fit into the grooves of a cast iron frame, or stand, in order that the yarn thereon might be further prepared for making cloth. The block and tackle operated on an overhead track, and the beam was raised and lowered by means of pulling a continuous chain through a pulley or block on which the chain fit into gear, which was so constructed that one link would go into a horizontal groove and the next link into a perpendicular one. There were flanges on each edge of the chain run of the pulley to keep the chain within proper bounds. The falling of the beam when the chain slipped on the occasion complained of is alleged in the declaration to have been "due to the chain being worn and slick, or the flanges being worn, or to other causes not known to the plaintiff, but known and understood by the defendant." No direct testimony was offered by appellee to show either that the chain was worn and slick, or that the flanges on the pulley were worn. But, it was shown by the testimony of a number of appellee's witnesses, and by that of at least one witness for the appellant, that it would have been impossible for the chain to have slipped so as to drop the beam to the floor unless the mechanism of the hoist had been defective; that, otherwise, the chain would fit and catch into the gear, and could not slip to such an extent as to let its load fall to the floor. The evidence offered by appellant was to the effect that this hoist was so constructed that the chain could not slip more than one or two inches, and that in fact it did not slip and cause the beam to fall to the floor on the occasion in question; that it was in good condition in every respect.
Where it is shown that the accident whereby the injury was caused could not have happened except for the defective condition of the appliance in question, and that the master knew, or by the exercise of reasonable care should have known, of such defective condition by reason of the fact that the beam had fallen on one or more occasions prior to the accident, as shown and complained of in this case, the doctrine of res ipsa loquitur applies. Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703; 5 Wigmore on Evidence (2 Ed.), Section 3509; 44 C.J. 1193; Cooley op. cit., page 1424; J.C. Penney Company v. Evans, 172 Miss. 900, 160 So. 779.
But, it is urged by the appellant that where the declaration charges specific acts of negligence, instead of charging negligence generally, the doctrine of res ipsa loquitur must be limited to creating a presumption in favor of the negligence charged in the declaration. This contention correctly states the rule, as announced in Alabama V. Railway Company v. Groome, supra. However, we do not think that the language above quoted from the declaration in the case at bar limits the charge of the defective condition complained of to the question of whether or not the chain had become worn and slick, and the flanges of the block had become worn, but that the charge "or to other causes not known to plaintiff, but fully known and understood by defendant" includes any other defect in the mechanism of the hoist which may have caused the beam to fall. The rationale of the rule which confines the plaintiff to proof of the specific negligence charged is that the defendant is entitled to be apprised as to the ground of negligence relied on for a recovery. The pulley, the gear, the flanges, and the chain are all parts of one appliance — the hoist; and we are of the opinion that the allegations and the proof are sufficient to show that the appliance was defective in that it permitted the chain to slip and the beam to fall. That is the substance of what is charged. Some of the parts of the hoist are in the housing of the block, and it would be too technical to require an employee complaining of a defective appliance to carry the burden of showing the defect to be in a particular part of a single appliance (often made of many small units), which may have caused an injury, where the allegation of negligence contained in the declaration is sufficiently general to specify the defective appliance complained of. The negligence complained of in the present case is a failure to exercise reasonable care to maintain the block and tackle, referred to as a hoist, in a reasonably safe condition.
It is next insisted by the appellant that if the beam in question fell to the floor a week prior to the accident complained of, as contended for by the appellee, a reasonable time thereafter should be allowed for the making of the promised repairs. This is true, but the question of what would be a reasonable time for making the repairs was an issue for the jury under the facts of this case. Moreover, the defense in the court below was that no promise to repair was made; that there was nothing wrong with the hoist, and that no repairs were needed, and as a matter of fact there was no effort made to obtain new parts for such purpose.
Responding to the contention that the appellee assumed the risk incident to operating the block and tackle during the period intervening between the alleged promise to repair and the date of his injury, we find that the proof discloses that another hoist at the mill was used on a former occasion when this one was out of order, and also that the appellant could have caused the beams to be moved during the interval in question by other means shown to be in use at similar mills. In other words, it was a question for the jury as to whether the appellant was negligent in requiring the appellee to continue the use of this particular appliance pending the delay for the alleged promised repair thereof. Under Section 513 of the Code of 1930, he did not assume the risk incident to its continued operation, if the appellant was negligent in requiring its use. Hardaway Contracting Company v. Rivers, Miss., 180 So. 800.
For the reasons hereinbefore stated, we are of the opinion that the action of the trial court was correct in overruling the motion of appellant for a peremptory instruction.
Next, it is said that the case must be reversed on the ground that the verdict is excessive; and that the proof of the extent of the injury was in part predicated on the incompetent testimony of an X-ray technician, who was neither a physician nor surgeon, and who had never taken a course in anatomy. The witness, C.A. Palmerlee, was shown to have had fifteen years experience in reading and interpreting X-ray pictures. He is in charge of the X-ray and Laboratory Department at the Baptist Hospital in Jackson, Mississippi, as an X-ray technician who reads and interprets X-rays for the medical staff of that institution, composed of approximately thirty-five physicians and surgeons. The court permitted him to testify that the X-ray pictures in evidence disclosed fractures of the vertebrae of appellee, but declined to permit him to express an opinion as to whether the fractures were due to trauma or injury. We think he was competent to testify as to what the X-ray pictures, which were admitted to be good ones, disclosed. Whipple v. Grandchamp, 261 Mass. 40, 158 N.E. 270, 57 A.L.R. 974. See, also, Ladlie v. American Glycerin Company, 115 Kan. 507, 223 P. 272; and Beard v. Turriten, 173 Miss. 206, 161 So. 688. His training and experience should have qualified him to have so testified. Being a physician and surgeon would not be the test of competency, since it is conceded that many medical practitioners are unable to read and interpret X-ray pictures. The experience of an X-ray technician in observing the effect of known fractures, as reflected in the pictures thereof, over a period of years, should peculiarly qualify him to state the facts thereby disclosed, although he would not be competent to express an opinion as to what caused the condition shown.
As to the amount of the verdict, we do not feel justified under the rule announced in the case of J.C. Penny Company v. Evans, supra, in substituting our judgment for that of the jury as to the reasonableness of the compensation awarded for the injury complained of, and since the issues were properly submitted to the jury under the law applicable thereto, the judgment must be affirmed.
Affirmed.