Opinion
No. 34737.
January 26, 1942. Suggestion of Error Overruled March 9, 1942.
1. APPEAL AND ERROR.
In determining whether trial court properly directed verdict for defendants, reviewing court must accept as true all evidence favorable to plaintiff and take as established every material fact which the evidence proves or tends to prove in favor of plaintiff either directly or by reasonable inference.
2. WATERS AND WATER COURSES.
In action for injuries to minor caused by drinking water allegedly contaminated and poisoned through acts of defendants, evidence held to make a question for jury.
APPEAL from the circuit court of Jefferson Davis county, HON J.C. SHIVERS, Judge.
Currie Currie, of Hattiesburg, for appellant.
If there was any evidence tending to establish that the water flowing from the newly painted roof into the cistern was poison and that appellant was made sick by drinking of this water, the case should have been submitted to the jury, and we submit that the evidence, taking it to be true, as the court was bound to do in granting the instruction, and drawing all logical inferences favorable to appellant from the testimony, established a case.
Gulf Ship Island Railroad Co. v. Prine, 118 Miss. 90, 79 So. 62; American Trading Co. v. Ingram-Day Lumber Co., 110 Miss. 31, 69 So. 707; N.O. N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; N.O. N.E.R. Co. v. Martin, 140 Miss. 410, 105 So. 864; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; Lowe v. Mobile Ohio Railroad Co., 149 Miss. 889, 116 So. 601; Columbus G. Ry. Co. v. Cobbs, 156 Miss. 604, 126 So. 402; Mobile Ohio Railroad Co. v. Clay, 156 Miss. 463, 125 So. 819; Lee County Gin Co. v. Middlebrooks, 161 Miss. 422, 137 So. 108; Jefferson Standard Life Ins. Co. v. Jefcoats, 164 Miss. 659, 143 So. 842; Keith v. Yazoo M.V.R. Co., 168 Miss. 519, 151 So. 916; Gravette v. Golden Saw Mill Trust Co., 170 Miss. 15, 154 So. 274; Columbian Mutual Life Ins. Co. v. Gunn, 173 Miss. 897, 163 So. 454; Pitts v. Mississippi Power Light Co., 177 Miss. 288, 170 So. 817; Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Wheat v. Teche Lines, 181 Miss. 408, 179 So. 553; Masonite Corporation v. Hill, 170 Miss. 158, 154 So. 295.
Welch Cooper, of Laurel, and Livingston Livingston, of Prentiss, for appellees.
The only proof offered by appellant in his effort to establish his own case is that lead from the paint could have done it. In other words, appellant has proved a mere possibility. To prove no more than that it was a possibility is not sufficient foundation for the support of a verdict or a judgment.
Berryhill v. Nichols, 171 Miss. 169, 158 So. 470.
Appellant has offered no proof that he was poisoned by the water except that it was possible.
We respectfully submit that the record shows without dispute that there was no poison from the paint in the water. And, even if we should be mistaken about this, the record shows that there was not sufficient poison in the water from the paint to poison the appellant. We submit that the record shows with great force that the Hooker family suffered from ptomaine poisoning.
Appellant sued appellees for personal injuries resulting to him from the drinking of water alleged to have become contaminated and poisoned through the acts of the defendants. The lower court directed a verdict for the defendants on the theory that the evidence of defendants reached that degree of conclusiveness against their liability as to preclude consideration by the jury of the evidence of liability offered by the plaintiff. The correctness of that ruling is the sole question presented on this appeal.
In determining this question we must accept as true all the evidence favorable to the plaintiff, and "every material fact which the evidence proves, or tends to prove, in favor of appellant, either directly or by reasonable inference, must be taken as established." New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770, 771. See Stricklin v. Harvey, 181 Miss. 606, 179 So. 345, citing prior Mississippi cases on this point. So tested, and after a detailed and thorough study of this record, we are of the opinion that determination of the facts upon which rested liability vel non of the defendants was a question for the jury. To set forth the evidence, pro and con, would require an opinion of great length, and since the case must be retried, and we can see no good purpose to be served thereby, we refrain from doing that.
Reversed and remanded.