Opinion
No. 27066.
May 7, 1928.
1. MASTER AND SERVANT. Employer's negligence in overcrowding truck on which employee was injured in collision with another truck and using unimproved roadway held insufficient for jury, in view of intervening cause.
In action against employer and another for injuries resulting to employee in collision between employer's truck on which he was riding and codefendant's truck, evidence as to negligence of employer in overcrowding his truck and using unimproved highway held insufficient for jury, in view of plaintiff's proof showing conclusively that neither of such alleged acts of negligence constituted proximate cause of injury, but that injury was due to negligently loaded and negligently driven truck of codefendant, which was independent intervening cause.
2. APPEAL AND ERROR. Plaintiff is bound by case made in his declaration.
Plaintiff on appeal is bound by case made in his declaration, since he cannot make one case in his pleadings and another by his proof.
3. MASTER AND SERVANT. Employer is not liable for negligence of fellow servant.
Employer is not liable for injuries to employee resulting from negligence of fellow servant.
4. DAMAGES. Five hundred dollars for injury resulting in five months' loss of time and causing lameness held grossly inadequate.
Five hundred dollars damages for personal injury causing loss of approximately five months' time, with two hundred and eight dollars doctor and hospital bills, and causing lameness so as to make it difficult for injured person to secure job as brick layer, held grossly inadequate.
APPEAL from circuit court of Harrison county; HON.W.A. WHITE, Judge.
J.D. Arlington and Mize, Mize Thompson, for appellant.
The court erred in granting the Glover Construction Company a peremptory instruction. Plaintiff's case against the Glover Construction Company was confirmed, strengthened, and corroborated by the testimony of Lewis Sperier. Appellee Sperier contradicted the appellant's testimony that the iron materials on the former's truck were extending over and beyond its sides or body. In all other material testimony Sperier's evidence corroborated and confirmed that of the appellant. As to whether or not the iron brackets on the truck of the appellee were negligently loaded so as to be protruding or extending over the side or body of the truck, was an issue or question of fact submitted to the jury, on conflicting testimony, and was properly so done. But there was uncontradicted evidence to the effect that the Glover Construction Company's truck was overcrowded; that the appellant was sitting, by necessity in an exposed and perilous position on the said truck; that the planks used as seats on the truck extended between six and sixteen inches over the sides of the truck, that there was no collision between the passing trucks; that the planks thus extending over the sides of the Glover Construction Company's truck came in contact with some part of the passing truck of Lewis Sperier one of the appellees; that the appellant foresaw his imminent peril and injury, and was unable to avoid the danger. There was also testimony to the effect that the truck of the appellee, the Glover Construction Company, swayed and swung over onto or against that of the appellee Lewis Sperier. See R. 87, 90, 94, 95, quoting R. 94, Sperier's testimony. When there is evidence tending to make out the plaintiff's case, a peremptory instruction should not be granted. Negligence being a question of fact for the jury it is only when reasonable minds cannot differ in their conclusions from the evidence, that it is or can become, a question of law for the court to decide. Dean v. Brannon, 139 Miss. 312, 104 So. 173; Wise v. Peugh, 140 Miss. 165, 106 So. 81; N.O. Ry. Co. v. Jackson, 140 Miss. 375, 105 So. 770; St. Louis Ry. Co. v. Nixon Phillips, 105 So. 478; Yates v. Houston Murray, 141 Miss. 81, 106 So. 110.
There is not necessarily presented the question of an independent intervening cause, on which theory the court could conceivably have found the Glover Construction Company not guilty of negligence contributing to appellant's injuries. Both appellees could have been found by the jury to be guilty of negligence that concurred to produce appellant's injuries. Appellant cites: Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; Susie B. Harrison v. Kansas City Elec. Light Co., 195 Mo. 606, 93 S.W. 951, 7 L.R.A. (N.S.) 293; Y. M.V.R. Co. v. Smith, 103 Miss. 150, 60 So. 73; I.C.R. Co. v. Thomas, 109 Miss. 536, 68 So. 773; Coccora v. Vicksburg Light Traction Co., 89 So. 257; Gulf S.I.R. Co. v. Carlson, 102 So. 168, 137 Miss. 613. In G. S.I.R. Co. v. Carlson, supra, the court held that to give a codefendant a peremptory instruction when the evidence tended to show negligence on the part of the party receiving it, was to virtually grant a peremptory instruction against the remaining codefendant. And that was exactly what happened in this case, for the appellee Sperier's testimony denied any negligence on his part whatever, and made out a perfect defense. Appellant was not a passenger, but still in the services of his master, who owed him the duty to furnish safe transportation — a greater duty than if the appellant had been a mere invitee. Belzoni Hardwood Lumber Co. v. Langford, 89 So. 919; Tallahalla Lumber Co. v. Holliman, 87 So. 661; Cattano v. Metropolitan Street Railway Co., 13 Amer. Neg. Rep. 566, 173 N.Y. 565; Holloway v. Pasadena P.R. Co., 13 Amer. Neg. Rep. 579, 130 Cal. 177.
The court erred in overruling appellant's motion for a new trial against Lewis Sperier, on the ground of the inadequacy of the damages. It was shown by the appellant and Dr. Rafferty, who treated him in and out of the hospital, that he was confined in the King's Daughters Hospital, at Gulfport, for a period of six weeks, and that the expenses for his hospitalization were ninety-five dollars. His expenses for medical treatment for ten weeks under Dr. Rafferty were one hundred eighty-five dollars. There was an ambulance expense of five dollars. Appellant's necessary expenses as a result of the injuries sustained were alone two hundred eighty-five dollars. From July 16th, to the latter part of December, a period of five months, appellant was unable to work, his disability therefor being a result of his injuries. It was shown that appellant was a skilled brick layer earning twelve dollars per day at the time his injuries were received. In the loss of time alone, appellant was damaged in a sum almost three times the amount of the verdict. It was shown that the injuries were very painful, and that the appellant endured, and still endures, great suffering. It appears conclusively from the evidence, that appellant's injuries were serious and are permanent. The fact that appellant, was a negro, a resident of the city of New Orleans, the domicile of his then employer, the Glover Construction Company, and a laborer of such unusual and commendable skill as to command regular employment at the wage of twelve dollars a day, those facts alone are sufficient to confirm the impression that the verdict in its inadequacy was the result of a perhaps unconscious and subtle bias and prejudice; and especially when the defendant was a white man, whose testimony was corroborated by that of his wife and another white man. Appellant cites in support of his contention: Mosely v. Jameson, 68 Miss. 336, 8 So. 744; Scott v. Yazoo H.V.R. Co., 103 Miss. 522, 60 So. 215; Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219; Murphy v. Cleveland, 106 Miss. 269, 63 So. 572; Ann. Cas. 1915B, 454; White v. McRee, 111 Miss. 502, 71 So. 804; Walker Bros. v. Nix, 115 Miss. 199, 76 So. 143. This case should be reversed on all, or either, of the errors assigned, and remanded for a new trial on the question of the Glover Construction Company's liability and that of damages against the appellee, Lewis Sperier.
Carl Marshal, for appellee.
At the time of the accident the plaintiff was being furnished with transportation in an automobile from the site of the hotel to his home in Pass Christian. The defendant, Lewis Sperier, had no connection with the defendant Glover Construction Company. The Glover Construction Company furnished two trucks to convey its employees from the scene of the construction to the city of Pass Christian when the men ceased work in the evenings. On the day of the accident each of the trucks made only one trip; and in consequence of this, the truck in which the plaintiff was riding was considerably crowded; some of the men standing up, and the plaintiff electing to sit in the lap of a fellow brick layer who was seated on the left-hand side of the vehicle. The workmen sat upon boards placed across the sides of the truck; the boards protruding, according to all of the plaintiff's testimony, between four and six inches beyond the sides. Every witness in the case agreed in testifying that the road was such that the two vehicles could safely pass, with the Sperier truck properly loaded, and both trucks driven with care commensurate with the conditions. All that any evidence in the case tended to establish was that the immediate, efficient and proximate cause of the accident was (1) the negligence of the defendant Sperier's driver, or (2) the negligence of the driver of the truck in which the plaintiff was riding, or (3) the combined negligence of the two drivers; it appearing to a certainty from all the evidence that the method of loading the vehicles could have been no more than a condition to, and not the proximate cause of the accident, which would have been avoided if both drivers had exercised reasonable care under the circumstances. And as to the Glover Construction Company he relies upon alleged negligence only in causing him to ride in a truck that was so filled with fellow employees that he could not freely retreat or escape from the effects of a collision with another vehicle in the event one should become imminent on the journey from the hotel site to Pass Christian.
The plaintiff alleges an actual collision between the Sperier truck and the vehicle in which he was riding. In none of them does he complain that the use of boards as seats cause the injury by protruding beyond the side of his truck; and in none of the plaintiff's instructions granted and refused in the lower court (R. 19-23; 28-30) does he hint at this alleged ground or theory of action, the idea being advanced by him for the first time in his brief in the supreme court. In all of them he commits himself to the proposition that the negligent driving of Sperier's truck was an intervening, efficient and proximate cause of the collision that injured him.
Appellant contends here that because there is a conflict between the plaintiff's testimony and that of the defendant Sperier (the defendant Glover Construction Company introduced no evidence) a jury question was involved. The confusion of the appellant in this regard results from his ignoring the fact that if the testimony offered by Sperier were true the trial court was compelled to direct the verdict for the Glover Construction Company. For if the testimony of Sperier and his witnesses correctly portrayed the facts of the accident, the proximate cause of the accident was the negligence of the driver of the truck in which the plaintiff was riding, a fellow employee of the plaintiff, for whose negligence the Glover Construction Company was not liable. Great Southern Lumber Company et al. v. Hamilton, 137 Miss. 55, 101 So. 787. This authority, thoroughly familiar to the court, is squarely in point with the case at bar. On the other hand, if the plaintiff's testimony be believed, the proximate cause of the accident was the intervening, efficient cause embodied in the negligence of Sperier. Louisville Nashville Ry. Co. v. Daniels, 135 Miss. 33, 99 So. 434.
In holding that there was no liability of the railroad company under the facts of the case, the supreme court quotes with approval and adopts the following language from Wharton on Negligence, section 134: "Supposing that, if it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between the negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable." In this authority this court also adopts with approval the following criterion applied by the supreme court of the United States in the case of Milwaukee St. Paul Ry. Co. v. Kellogg, 94 U.S. 469, 24 L.Ed. 256: "The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?"
Geo. R. Smith and Jno. S. Hees, for appellee.
We respectfully present our views why this cause should not be reversed as to the appellee Louis Sperier, or, if the same should be reversed that it should not be upon the amount of damages only. We agree with counsel for appellant that from the testimony it is not clear how appellant's injuries were sustained. Considering solely the testimony on behalf of the appellant, it is manifest that there was no actual collision of the two trucks, but that the accident occurred because of the fact that the truck of the Glover Construction Company was so overcrowded that appellant, in order to ride, was compelled to sit in the lap of another with his feet on the outside of the truck, and that the immediate cause of the accident was that the planks in the truck, used as seats, extended five or six inches outside of the body of the truck in which appellant was riding, while the truck of this appellee was loaded with iron brackets which extended five or six inches at the rear end of the truck on the side toward which the truck in which appellant was riding. If any negligence by this testimony was shown chargeable to Sperier, it was that his driver misjudged the space that was required between the two trucks in passing with the projections on each truck. The jury rendered a verdict against the appellee Sperier in the sum of five hundred dollars, and this verdict, we submit, was full and adequate. Appellee Glover Construction Company was guilty of gross negligence in furnishing the appellant with an overcrowded car in which it was dangerous for him to ride under the known circumstances and condition and use of this narrow and irregular road; both because of the condition of the roadway itself and the known use of same by other vehicles including that operated by the appellant Sperier. Appellant testified that he was fully acquainted with the condition and character of this road. This being true, then the appellant was clearly guilty of negligence in sitting on the outside of the car under the circumstances, and such negligence on the part of the appellant not only contributed to, but was the proximate cause of, his injury. If this court should reverse this cause as to the appellee Glover Construction Company then, we submit, the cause should likewise be reversed as to appellee Sperier for a new trial on the merits as to both of the parties for the reason, as stated in the case of Gulf S.I.R.R. Co. v. Carlson, 102 So. 168, that the wrongful granting of a peremptory for a codefendant is a peremptory instruction in favor of the plaintiff against the remaining defendant.
J.D. Arrington and Mize, Mize Thompson, in reply for appellant.
To obviate the effect of the undisputed testimony that the planks used by appellee for seats on its truck, extended between six and sixteen inches beyond the sides of the same, and that the said planks, or one of them, caught or came in contact with the materials on the defendant Sperier's truck, or the truck itself, counsel for the appellee objects that such testimony, constitutes a change of appellant's theory of action against the Glover Construction Company. Appellant complained of appellee's negligence in not furnishing him safe transportation, in that appellant was compelled to occupy a seat on the edge and side of appellee's truck, and sit in a co-servant's lap, with his body and feet exposed to danger and peril, and that the truck was dangerously and negligently overcrowded. The law of pleading requires only the ultimate, and not the evidentiary facts. The details are to be developed at the trial of a cause, as they were in this case. Certainly the fact that the planks extended out over the sides of the truck as much as sixteen inches, as testified to by at least three witnesses, constituted quite a factor in disclosing whose negligence caused the injury, and especially so in view of the extreme narrowness of the road used by the master, and the bumps and gulleys and roots with which it was fraught — and especially in view of the defendant Sperier's testimony that the said extended plank caught on his truck and caused the injuries complained of. Counsel, by his very objection to the testimony, confesses its importance, which is obvious. Counsel for appellee cites the case of the Great Southern Lumber Company v. Hamilton, 137 Miss. 55, 101 So. 787, to show the Glover Construction Company was not liable. The case is not relevant here, for obvious reasons. The appellant, in the first place, admits he was in the service of his master when injured. In the case cited, the plaintiff's action was grounded on the negligence of the driver of the truck, the plaintiff's fellow-servant; whereas, in this case, the action is grounded on the failure of the master to perform his nondelegable duty to furnish the appellant reasonably safe transportation. Counsel is in error in assuming that the testimony of Sperier showed that the proximate cause of the accident was the negligence of the driver of the appellee's truck. Great Southern Lumber Co. v. Hamilton, is of no service to us on this appeal, or to counsel. The law contained in it, if applicable at all, could have been embodied in an instruction to the jury. Appellee cites the case of Louisville Nashville R.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, as being directly in point. If in point at all, it is certainly against the contention of appellee, for in that case the supreme court held that the speed of the train bore no legal relation of either proximate or concurring cause to the production of the accident and consequent injuries. Telephone Company v. Woodham, 99 Miss. 318, is much in point. The same legal principles are involved; it, too, was a case of joint negligence. That case, and the case at bar, are each distinguishable from the case of L. N.R.R. Co. v. Daniels, relied on by the appellant, because in each of the former the negligence of two tort-feasors contributed to cause the accident, and the negligence of each combined and concurred, whereas, in the latter, relied on by appellant, there was no concurrence on combination in the causation of the injury — an element glaringly present in this case.
Appellant cites: Peterson v. Elgin, etc., Traction Co., 238 Ill. 403, 87 N.E. 345, 142 Ill. A. 34, quoting: "Liability results from an injury which arises either by reason of such passenger being pushed from such car, by virtue of its overcrowded condition or by being struck by a passing car." Appellant was not pushed off — though he easily could have been; appellant did not fall off, as was very possible, nor was he thrown off; but appellant was jammed in the course of the passage of two cars, by virtue of the overcrowded condition of the truck alone, or by such condition combining with the negligence of another. In the case of Basey v. Louisiana R.R. Co., 137 La. 451, 68 So. 824, L.R.A. 1915E, 964, the court said: "It is negligence when a carrier furnished an insufficient number of cars, compelling passengers to stand in the aisles and on the platforms." Again, in Pray v. Omaha St. Railway Co., 44 Neb. 167, 62 N.W. 447, 48 Am. St. Rep. 717, the court said: "It is evidence of negligence on the part of a street railway company to carry passengers greatly in excess of the seating capacity of its trains, and permitting them to stand on the platforms and steps of the cars." In view of the above authorities, it appears conclusively that dangerously overcrowding a vehicle can be the proximate cause of an injury. That is important, irrespective of the duty that may be owed the one being transported, whether he be a servant or a passenger. Bailey v. Delta Electric Light Power Mfg. Co., 86 Miss. 634, 38 So. 354; Nelson v. Ill. Cent. R.R. Co., 53 So. 619.
Appellant sued the Glover Construction Company and Lewis Sperier as joint tort-feasors. At the conclusion of the evidence, the trial court granted a peremptory instruction and directed a verdict in favor of the Glover Construction Company. The cause being submitted to the jury as to the liability of Sperier, a verdict of five hundred dollars was returned against him. The appellant, plaintiff in the court below, appeals from the action of the court in directing a verdict as to the construction company, and from the verdict as to Sperier, on the ground of the inadequacy of the verdict.
Appellant was a brick mason employed by the construction company, contractor, in the construction of the Pine Hills Hotel located at a point some ten miles distant from Pass Christian. The construction company transported its employees daily from their homes at Pass Christian to their work, returning at the close of the day. Motor-driven trucks were used for this purpose, and, usually, three trucks were in service. There was a private roadway, rough and uneven, extending from the hotel to the main highway, over which these trucks moved.
The declaration avers that the truck on which the appellant was riding was overcrowded so that he was unable to procure a seat thereon except on the lap of another employee, and it became necessary "to place his feet upon a board lying crosswise the side planks on top of said truck;" the truck, being thus loaded and driven by another employee, was proceeding over said roadway, when it was met by one of Sperier's trucks loaded with seven iron brackets weighing seven hundred fifty pounds each, which were protruding over the sides; that Sperier negligently ran into the other truck, and the protruding iron material caught appellant's feet and injured him. The negligence alleged against the construction company was the overcrowding of the truck so that appellant was unable, for lack of room, to extricate himself from the danger of being injured by the oncoming truck loaded as aforesaid. The unimproved roadway was also set out as a ground of negligence against the construction company.
Appellant's proof tended to show that Sperier was running at a great rate of speed, some of the witnesses placing it as fast as twenty-five miles per hour, and also that there was ample room for the trucks to pass but for the protruding irons, and that the construction company's truck had turned to the side and had been practically brought to a stop when caught by the protruding irons.
Sperier's proof tended to show that the construction company's truck ran at a dangerous rate of speed; that the boards thereon, improvised as seats, were protruding over the sides.
Appellant insists that the court erred in directing a verdict for the Glover Construction Company.
Holding appellant to the case made in his declaration, we have no difficulty in reaching a conclusion. The construction company is charged with two grounds of negligence: (1) The overcrowding of the truck and (2) the unimproved roadway.
Appellant's proof shows conclusively that neither of these alleged acts of negligence could have been the proximate cause of the injury. But for the oncoming negligently loaded and negligently driven truck of Sperier, there would have been no injury. This was an independent, responsible, intervening cause, the happening of which we do not think the construction company was called upon reasonably to anticipate. L. N.R.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516.
It is true Sperier undertook, in his defense, to cast the blame upon the construction company by showing an excessive rate of speed of its truck, and by showing there were protruding planks thereon. Conceding, but not deciding, this to be true, it still appears that these acts of negligence were not set out in the declaration, and when this testimony came in, no leave was asked to amend.
The plaintiff, appellant here, is bound by the case made in his declaration. He cannot make one case in his pleadings, and another by his proof. This court so held in Powell v. Plant, 23 So. 399, not officially reported.
If the alleged negligence of the driver of the construction company had been averred in the declaration and established by proof, it would not avail appellant, for the reason that this driver was a fellow servant, for whose negligence the construction company was not liable. Great Southern Lumber Co. v. Hamilton, 137 Miss. 55, 101 So. 787.
We therefore hold the trial court was not in error in directing a verdict for the Glover Construction Company.
On the question of the inadequacy of damages, the proof shows, without conflict, that the appellant was earning twelve dollars per day; that he was injured on July 16th, and was unable to return to work until the last of December; that his pain and suffering were intense; that his doctor's and hospital bills amounted to two hundred eight dollars; that, as a result of his injury, he was lame at the time of the trial, and has difficulty in procuring and holding jobs as a brick layer because of his inability to stand on uneven scaffolds, and is unable to make regular time. For all of these, in addition to the pain and suffering, he was awarded the sum of five hundred dollars, less than one-third of his actual earnings for the time lost, slightly above his bills for doctor and hospital services.
We think this verdict was grossly inadequate, and evinces bias or prejudice against the rights of appellant.
The judgment will be affirmed as to liability, and reversed and remanded for a new trial as to the measure of damages only.
Affirmed as to liability, and reversed and remanded as to damages only.
Affirmed. Reversed and remanded.