National Box Co. v. Henry , 140 Miss. 397 ( 1925 )

Ethridge, J.,

delivered the opinion of the court.

The appellee sued the appellant for a personal injury, and recovered a verdict and judgment for eight hundred dollars. The plaintiff was a carpenter working for the appellant, defendant below, in constructing some work near a platform and certain water vats used by the appellant in its business. The particular work that the plaintiff was doing was placing some bolts through certain timbers and screwing the nuts on the bolts. Appellee was working on the outside of the platform or scaffolding on which he was working, and the machinery used by the. defendant in hoisting logs was being operated. It is contended by the appellant that the plaintiff was instructed not to get on the outside, which would expose him to danger, but to stay under the protection of the scaffolding; while the plaintiff, appellee here, insisted that he was instructed and directed to get on the outside to do the work, and that such work could not well be done in any other way. While the plaintiff was engaged in this work, standing on some scaffolding, a part of which was a board, such board was struck by a' log, which fell from the lifting machinery, striking the board and causing it to throw the plaintiff some distance into the air, and in falling he fell into one of the vats, claiming that he was thereby injured.

It appears from the evidence that the plaintiff went to a hospital and remained there for ten days, and was treated by physicians, and that the hospital expenses were paid by the appellant. It is contended that plaintiff was unable to work from the time of such injury, which occurred on December 14th, until the 1st of February following, when he secured another position, and that he was not then able to do hard work. Appellee testified that he was injured, and that he spat up blood and suffered some. The physicians who attended the plaintiff were not introduced as witnesses, and there was no medical testimony as to the character and extent of his injury. While the plaintiff was on the witness stand, he was asked what the physicians treated him for, to which objection was made and sustained, and this has been assigned for error. The plaintiff was supported in his testimony by one witness, as to his version of where he was required to work, and as to the necessity of being on the outside to do the work properly. He was contradicted by several other workmen, who were working around the same place, as to the necessity of being on the outside to properly perform the work, and was 'contradicted by the foreman as to being directed to get on the outside to do the work. Several witnesses contradicted the plaintiff as to the extent and character of his injuries.

\ The plaintiff obtained five instructions, and the defendant obtained four, on the law applicable to the case. The appellant assigns for error the giving of the fifth instruction'for the plaintiff, which reads as follows:

“The court instructs the jury for the plaintiff that, if they believe from the evidence that the defendant company had piled logs, or caused the same to be piled, on the deck above, or in the vicinity of where plaintiff was directed to work, and that the defendant knew that said logs were in the habit of rolling off of said deck, and causéd or permitted the plaintiff to continue work 'in a place which they knew, or had reason to believe, was unsafe, then the defendant was guilty of negligence, and, if the jury believe from the evidence that such negdigence was the proximate cause of the injury, then they shall find for the plaintiff. ’ ’

This instruction is erroneous to the extent that it used the words “or permitted,” but we do not think the error is sufficient to cause a reversal of the case. The law as given in the instructions, taken as a whole, •covers the cause of the case, and we do not think that 'the use of the words “or permitted,” in the light of the evidence and instructions, misled the jury. The rights of both parties were adequately stated in the instructions given.

It is insisted also that the verdict of eight hundred dollars is excessive inasmuch as the testimony showed that there were no scars or bruises on plaintiff’s body. It is not disputed that he was in the hospital ten days, and that he was there treated at the expense of the 'appellant company. The plaintiff testified as to his suffering and physical condition, and we think it was for the jury to say whether his evidence is true or not, and that the jury by its verdict accepted the plaintiff’s version, and that, in the light of these facts, the verdict is not excessive.

We do not think there was prejudicial error in refusing to permit the defendant to interrogate the plaintiff as to what his physicians treated him for. Without deciding that the ruling of the court is proper on this point, we are of the opinion that no prejudicial error resulted, because in the nature of things the defendant would be bound by the plaintiff’s answer; it not being competent to introduce plaintiff’s physicians, and, from his evidence as to the nature and character of his injuries, it is manifest that the answers to this question would not have been helpful or beneficial to the defendant.

The judgment of the court below will therefore be affirmed.

Affirmed.