Faulkner v. Middleton , 186 Miss. 355 ( 1939 )

In the court below, Henry Middleton, Jr., appellee and cross-appellant, recovered a judgment against Marion Faulkner et al., for damages for the loss of his eye in the sum of $648.25. Faulkner et al., appealed from that judgment on the question of liability. Henry Middleton, Jr., filed a cross-appeal on the inadequacy of the damages allowed by the jury.

The law of this case is fully set forth in the case of Henry Middleton, Jr., (a minor) v. Marion Faulkner et al., 180 Miss. 737,178 So. 583.

In the court below, the plaintiff and his witness, Hayden, testified to every material fact requisite to uphold the allegations of the declaration, which was reviewed in the former case.

It was admitted that Middleton was an inexperienced minor. It was not in dispute that the master knew of the youthfulness and inexperience of the servant Middleton.

Middleton was injured while striking a wedge, which his evidence showed was "burred," "mushroomed," and thereby defective so that it had slivers of steel about its top or head. After he had struck the wedge with a maul only a few blows, a sliver of steel flew therefrom, hit him in the eye, completely destroying his eyeball and resulting in the loss of his eye. The evidence of the plaintiff and his witness was sharply contradicted in all other particulars as to the defective condition of the wedge by a far greater number of witnesses. Likewise, the master sharply contradicted the statement of the plaintiff and his witness that Guion had instructed him to use that particular wedge on that day. The plaintiff had never been engaged in any work of that kind in the woods before. We do not think that we are warranted in disturbing the verdict on the ground that the verdict is against the overwhelming weight of the evidence. We think this case was peculiarly one for the jury — to determine the credibility of the witnesses and the weight of the evidence, and they found against the defendant on the question of liability.

Considering the instructions as a whole, we do not think there is reversible error therein.

On the question of liability on the direct appeal, the case must be affirmed.

On the cross-appeal of Middleton, we are of opinion that the verdict, $648.25, was wholly inadequate. The evidence shows that after the appellant had received the injury, he walked some miles from Glass to Vicksburg, and on that night sought treatment at a hospital, but because the master refused to or did not authorize the medical treatment necessary, treatment was delayed until pus had formed in the eye. The evidence is undisputed that he suffered intense pain. From Friday night until Sunday morning when physicians advised an immediate operation, the eye was infected and badly swollen. The operation could not be performed by administering a local anaesthetic. The surgeon cut off about two-thirds of the anterior surface of the soft part or portion of the eyeball and scraped it out with a curette. The condition of the eye was caused by a foreign substance entering and lodging in the soft part of the tissue. The physician gave it as his opinion that the sliver of steel was still lodged in that tissue. After the operation, it was necessary to insert drainage tubes within the eye. He remained in the hospital ten days. He incurred a liability for the service there of $148.25. This leaves $500 as a verdict of the jury for the pain and suffering, and the permanent loss of one eye.

In this situation, where there was no evidence of contributory negligence on the part of the servant, we think the amount of the verdict was wholly inadequate, and that the verdict was evidently induced by passion and prejudice on the part of the jury, which necessitates another trial on the question of damages.

The jury rendered a verdict in favor of Middleton and thereby decided that he lost his eye as a result of the negligence of the master. The sum of $500 for the pain and suffering which the record discloses the servant endured, together with a permanent loss of his eye for life, (he is not yet twenty-one years of age) is so grossly inadequate that we cannot in fairness affirm it.

Since the decision in the case of Scott v. Yazoo M.V.R. Co.,103 Miss. 522, 60 So. 215, this Court is committed to the practice of affirming the case on the question of liability, and reversing for another trial on the question of damages only.

On the question of the inadequacy of the damages in this case, and illuminative of our reason for reversing the case on damages only, see Whitehead v. Newton Oil Mfg. Co., 105 Miss. 711, 63 So. 219.

The case is affirmed on liability, and reversed for another trial on the question of damages only.

Affirmed on liability, reversed on the question of damages.