Belzoni Hardwood Lumber Co. v. Langford , 127 Miss. 234 ( 1921 )

Holden, J.,

delivered the opinion of the court.

The appellee, Mrs. Nellie Langford, recovered a judgment of one thousand five hundred dollars against the appellant as damages for the death of her husband, who was killed while in the employment of appellant, from which judgment the appellant directly appeals, and the appellee cross-appeals.

Langford, the husband of appellee, was employed by the appellant Hardwood Lumber Company as a log loader; was earning four dollars per day, and was thirty-five years of age. The appellant operated a sawmill at Belzoni for the manufacture of hardwood lumber. It owned a tract of timber land some miles out on the east side of the Yazoo river, from which it obtained its logs to be sawed at its sawmill. It would send its logging train out into the woods daily, where the logs were loaded u*pon the flat cars and transported back to the mill. The deceased was employed to load logs upon the cars with a log loader machine. He would go out on the train daily and return with it to the mill when the cars were loaded with loss. On the day of Ms fatal injury be bad started out on tbe logging train when tbe crew of the train stopped to pick up a flat car loaded with square bridge timbers to take out on tbe logging line for repair purposes. He assisted tbe train crew in switching tbe car of square timbers onto tbe main line by a method known as “poling” tbe car, so that tbe engine could couple to it and take it with tbe train. While •assisting tbe crew in “poling” or switching this car of timber into the train, or immediately after tbe “poling” of tbe car bad been done, and while Langford was standing near tbe car, one of tbe heavy timbers fell from tbe top of tbe car, striking him upon tbe bead and killing him.

Tbe'testimony in tbe record shows that tbe car was improperly and negligently loaded with tbe heavy square timbers, and that the timber fell when- tbe car was jarred by tbe engine, or shortly thereafter, because of tbe negligent manner of its loading without .standards, braces, or any means of holding tbe timber upon tbe car. There is scant room for dispute as to tbe evidence showing negligence on tbe part of tbe appellant which caused tbe death of Langford.

On direct appeal the appellant nrges reversal on tbe ground that Langford was killed while acting as a volunteer in assisting to switch tbe car into the train; that he was not acting within tbe scope of bis employment because be was employed as a log loader, and not employed in tbe moving or switching of tbe train-when be was killed, and therefore there is no liability of appellant, because it owed him no duty except to not willfully injure him.

But this contention of appellant can avail nothing; for the reason that tbe evidence in tbe record clearly shows that Langford bad tbe right to ride upon tbe train in going to bis work, and therefore bad a right to be at tbe place where he was killed; and, even though be was acting outside of bis employment at tbe time, still be was, at least, an invitee toward whom tbe appellant should have used reasonable care not to injure, and should not have invited him into a situation which was not a reasonably safe place.

Furthermore, tbe testimony shows that Langford bad habitually and daily assisted the train crew in switching the cars in and about the train, and had assisted in doing any other necessary thing so as to aid in getting the train out into the woods and back to the mill. This daily train service by Langford was with the knowledge and sanction of the officers of appellant; consequently it will not do for appellant to contend that it owed no duty to use reasonable care to prevent injury to Langford. Therefore the» lower court did not err in refusing a peremptory instruction for appellant, and the judgment of the lower court on direct appeal is affirmed as to liability.

The cross-appellant, Mrs. Langford, complains that the amount of damages assessed is grossly inadequate and seeks a reversal as to the amount of damages only. The cross-appellee opposes this contention on the ground that no motion for a new trial was made in the lower court, and that thei*efore complaint as to the amount of damages cannot be made now. The position of cross-appellee in this regard is well taken, and Avould settle the cross-point raised if that were all that cross-appellant relied upon. Coccora v. Vicksburg Co., 89 So. 257.

But it is urged by cross-appellant that the court erred in its ruling with reference to the measure of damages in its instructions to the jury and in erroneously admitting certain evidence which influenced the jury to render a verdict for an inadequate amount. The court permitted the cross-appellee, lumber company, to show that Mrs. Lang-ford had been separated from her husband for several years prior to his death, and that she on one occasion in Memphis had introduced to the Avitness a man whom she said was her husband. The court also instructed the jury, which is claimed to be error and damaging to cross-appellant, that:

“In estimating the amount of damages to be awarded plaintiff they should take into consideration the marital relations existing between Langford (the decedent) and the plaintiff at the time of his death and prior thereto”— and it is contended that this testimony submitted to the jury, together with the said instruction, resulted in serious injury to the cross-appellant’s case with reference to the amount of damages recoverable in the case. It is unnecessary for us to decide whether or not the testimony complained of was admissible, because we are convinced that the granting of the instruction was error, and, considered in connection with the testimony, undoubtedly prejudiced the rights of the cruss-appellant with reference to the amount of damages that should have been assessed by the jury. We are led to this view on the reasoning that the statute provides for the recovery of “all damages of every kind to the decedent.” Certainly the fact, if it were a fact, thnt Mrs. Langford was guilty of misconduct in any way as a wife could not alter the amount of “damages to the decedent;” since her conduct could not affect her right to recover “all damages of every kind to the decedent” as expressly provided by the statute. So, she being the wife, the law gives to her the “damages to the decedent,” regardless of “the marital relations existing between the parties at the time of his death and prior thereto.” The instruction ingeniously points" at the conduct of the wife, and tells the jury to take her conduct into consideration in fixing the amount of damages. This was not correct as to the damages due for the death of the husband.

We do not say that the conduct of the wife, or the strained relations existing between a man and his wife, might not affect the right to recover for some of the elements of damages that are allowed under the statute in such cases. However, we decide nothing in this regard, as it is unnecessary to go further than announced above in order to reverse on cross-appeal. The judgment of one thousand five hundred dollars is grossly inadequate'.

The judgment on cross-appeal as to the amount of damages is reversed, and the cause remanded for a new trial on the question of the amount of damages only. Affirmed on direct appeal.

Affirmed on direct appeal; reversed and remanded on cross-appeal.

Affirmed on direct appeal.

Reversed and remanded on cross-appeal.