Opinion
No. 38461.
June 9, 1952.
1. Master and servant — assumption of risk — dangerous animal.
Although a servant knows by past experience with the animal that a particular horse is dangerous and likely to injure a rider and when the master has like knowledge, yet requires the servant to ride the horse in connection with his work, and in compliance the servant is injured by the horse, he is not barred of recovery under the doctrine of assumption of risk. Sec. 1456 Code 1942.
2. Damages — instructions — personal injuries.
When there is no dispute that plaintiff did sustain an injury, an instruction which authorized the jury to award such damage, and only such, as will compensate for the injuries sustained as shown by a preponderance of the evidence is not objectionable.
3. Damages — personal injuries — verdict, when not excessive.
Where the proof showed that the plaintiff sustained a painful and serious injury, probably permanent in character, and a substantial loss of wages, past and prospective, a verdict of $2700 is not excessive, but an additional amount of $250 for medical expenses must be disallowed when there was no proof whatever of the amount expended therefor.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Hinds County; HOMER CURRIE, Judge by interchange.
Allan T. Edwards, for appellant.
Cited and discussed the following:
39 C.J., Master and Servant, 766-768, pars. 966-968; 56 C.J.S., Master and Servant, 1177-1178, par. 374; 3 C.J.S., Animals, 1247-1258, pars. 145-151; Sec. 1456 Code 1942; Central Lbr. Co. v. Porter, 139 Miss. 66, 103 So. 506; Crosby, et al. v. Burge, 190 Miss. 739, 1 So.2d 504; Eastman Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Edward Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93; Farmer v. Cumberland Telephone Telegraph Co., 86 Miss. 55, 38 So. 775; F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447 (pars. 7, 8); Harvey, et al. v. Smith, 190 Miss. 130, 198 So. 739; Hegwood v. J.J. Newman Lbr. Co., 132 Miss. 487, 96 So. 695; Meridian Laundry Co., Inc. v. James, 190 Miss. 119, 195 So. 689; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Waterman-Fouke Lbr. Co., et al. v. Miles, 135 Miss. 146, 99 So. 759; Wilson Co. v. Holmes, 180 Miss. 861, 177 So. 24.
J.L. Denman, for appellee.
Cited and discussed the following:
35 Am. Jur., Master and Servant, 196; 15 Am. Jur., Damages, 220; 26 A.L.R. 871; 42 A.L.R. 226; 60 A.L.R. 468; Secs. 1455, 1456, Code 1942; Avent v. Tucker, 188 Miss. 207, 194 So. 484; Beck v. Citizen's Coal Mining Co., 136 Ill. App. 637, affirmed in 254 Ill. 198, N.E. 228; Biedenharm Candy Co. v. Moore, 184 Miss. 721, 186 So. 628; Central Lbr. Co. v. Porter, 139 Miss. 66, 103 So. 506; Corey-Reed v. Farmer, 187 Miss. 12, 192 So. 48; E.L. Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350; Gatliff Coal Mining Co. v. Wright, 157 Ky. 682, 163 S.W. 1110; Green v. Comfort Bus Line, 5 N.J. Misc. R. 241, 136 A. 193; Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74; Johns-Manville Products Co. v. McClure, 209 Miss. 220, 46 So.2d 538; Miss. Power Light Co. v. Merritt, 194 Miss. 794, 12 So.2d 527; Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66; Standard Oil Co. v. Crane, 199 Miss. 69, 23 So.2d 297; St. Louis-San Francisco R.R. Co. v. Dyson, 207 Miss. 339, 43 So.2d 95; Whelan v. Washington Lbr. Co., 41 Wn. 153, 83 P. 98; Yazoo M.V.R.R. Co. v. Lucken, 137 Miss. 572.
Appellee, as plaintiff, brought this suit against appellant, as defendant, for the recovery of damages for personal injuries sustained by him while riding an allegedly unsafe and dangerous horse in the course of his employment on appellant's farm. A jury in the county court awarded damages in the sum of $2,950, the full amount sued for. The judgment entered thereon was affirmed by the circuit court.
Appellant contends that he was entitled to a peremptory instruction in the trial court for the reason that the appellee was an experienced horseman and assumed the risk in that he voluntarily undertook the task of breaking the animal as a saddle horse. (Hn 1) Appellee's evidence is to the effect that the horse in question was dangerous, that it had thrown appellee on two previous occasions, that the dangerous character of the horse was known to appellant, that appellant required appellee to ride the horse in connection with his work on the farm, and that appellee did not voluntarily ride the horse. The evidence was sufficient to support a finding of negligence on the part of appellant, and his contention as to assumption of risk was fully answered by this Court in the case of Central Lumber Co. v. Porter, 139 Miss. 66, 77, 103 So. 506, 508, 42 A.L.R. 221, wherein we said: "It is next insisted that, conceding that the team was unsafe and that the master was negligent with reference thereto, still plaintiff, with knowledge of the character of the team, voluntarily used said team and assumed the risk of so doing. Under section 504, Hemingway's Code (chapter 156, Laws of 1914), an employee does not assume the risk of his employment where the master is negligent, with certain exceptions therein named, which do not apply to the plaintiff in this case. It was not, therefore, a bar to the plaintiff's right of action that he operated with the team furnished him by the company, under the circumstances disclosed. At most under this record it would be contributory negligence only." The cited statute has been brought forward as Section 1456, Code of 1942, and is still in full force and effect.
It is also contended that the trial court erred in overruling the motion for a new trial upon the ground that the verdict is contrary to the great weight of the evidence. As heretofore stated, the evidence was sufficient to support the jury's finding on the issue of negligence and we do not think that the verdict on that issue is contrary to the weight of the evidence.
Complaint is also made against two instructions granted to appellee. The first is on the facts necessary to constitute negligence and is fully supported by the decision in Central Lumber Co. v. Porter, supra. (Hn 2) The second is a very short instruction on the subject of damages and only authorizes the jury to award such damages as will compensate for the injuries sustained as shown by a preponderance of the evidence. There is no dispute in the evidence that appellee did sustain an injury and we think the instruction on damages was authorized under the proof.
It is lastly contended that the verdict is excessive and this point was raised in the motion for a new trial. (Hn 3) Appellee elected in his declaration to itemize his damages as follows: $250 for medical expenses, $1,500 for loss in wages, and $1,200 for pain and suffering. The record shows that he received medical attention but there is not one word of proof in the record as to any amount expended for that purpose. Nevertheless the jury awarded him the full amount sued for, which necessarily included $250 for medical attention. According to appellee's proof, supported by medical testimony, he sustained a very painful and serious injury which is in all probability permanent in character and we are of the opinion that the evidence is sufficient to support an award of $1,200 for pain and suffering and that it is also sufficient to support an award of $1,500 for loss of wages, past and prospective, but there is no proof to support the recovery of $250 medical expenses and the verdict is excessive by that amount. If the appellee will enter a remittitur for $250 within fifteen days hereafter the judgment will be affirmed for $2,700, otherwise it will be reversed and the cause remanded for a new trial on the issue of damages only.
If the remittitur is entered in this Court, the affirmance for $2,700 will bear interest from July 24, 1951, the date of the original judgment, and the costs will be assessed against appellant, but no damages will be allowed either on the appeal to the circuit court or on appeal to this Court. Mississippi State Highway Commission v. Burwell, 206 Miss. 490, 497, 39 So.2d 497, 40 So.2d 263
Affirmed with remittitur.
McGehee, C.J., and Alexander, Holmes and Ethridge, JJ., concur.