Yazoo & M. V. R. v. Boone , 111 Miss. 881 ( 1916 )

Holden, J.,

delivered the opinion of the court.

Amongst the errors complained of by the appellant here is the refusal by the lower court to grant the following instruction asked by the defendant:

“The court instructs the jury for the defendant that the plaintiff in this case is not entitled to recover any damages because of the polypus developing in her nose.”

The testimony in the case shows that the appellee, Mrs. Boone, was caught in a rain on an August evening, while traveling about two miles, and although she had an. umbrella, and her male relatives were with her, she claims to have gotten wet and had to change clothes on account of it. She testified that this wetting caused a “polypus” to develop in her nose necessitating several operations to remove it. The testimony of the appellee that her getting wet on this August evening was the cause of the polypus appears to be, taken in connection with the balance of her testimony, a mere belief or opinion of this lady. Her opinion does not find support in any other fact or circumstance in the case, and amounts to mere conjecture; and, taking the testimony as a whole in this record, and esT pecially the testimony of the two doctors who testified in the case, we do not find any substantial evidence showing any connection between the wetting received by the appellee and the development of the polypus. In truth and in fact, the testimony in this record shows that the wetting of the' appellee by the rain on this occasion did not, and could not have, developed the polypus or growth in her nose. There being no substantial proof of this alleged fact, the jury should not have been allowed to pass upon it; and therefore the refusal of the lower court to grant the instruction No. 10, referred to above, was erroneous, and for such error the judgment of the lower court is reversed, and the cause remanded.

Reversed and remanded.