McCaskey v. Gantt Bros.

ANDERSON, J.

— There can be no donbt but what the plaintiff was guilty of negligence in the discharge of his duty as slab tripper, such as would preclude him from recovering in this case, but for the fact that there was sufficient evidence from which the jury could reasonably infer that the sawyer, H. D. Gantt, was guilty of subsequent negligence which proximately caused the plaintiff’s injury. The plaintiff did not clear the carriage by properly removing the slab and safely placing it upon the roller, as it was his duty to do, but placed it in such a way as to cause the end, or “feather edge” to overlap and come in contact with the headblock of the carriage after it was reversed and was returning. It seems that after so placing the slab, the plaintiff stepped back a few feet for some purpose, and that he was immediately struck by the slab, which knocked him or caused him to fall against the pulleys and saw, and that the slab was knocked against him as the result of a collision between it and the headblock of the carriage. There was evidence that it was the duty of the slab tripper to clear the carriage as soon as the slab was freed from the stock, but there was evidence that it was also the duty of the sawyer to know that the carriageway was clear before reversing same. Therefore, while the plaintiff was guilty of negligence as to the manner of tripping the slab, and did not properly place it upon the roller, yet there was evidence that the sawyer could have seen and ascertained that the slab, or one end of it, extended so far over the roller as to come in contact with the carriage, and that it was his duty to do this before reversing the carriage. If it was the duty of the sawyer to see that the carriage was clear before reversing same, the jury could infer that the sawyer negligently failed to discharge said duty, and that this neglect ón his part was subsequent to the negligence of the plaintiff. While the proof conclusively shows that the plaintiff was guilty of negligence, it was open for the jury to find that the sawyer was guilty of negligence subsequent thereto, and whether or not the plaintiff was guilty of any negligence concurrent with or subsequent to the negligence of said sawyer, and these last facts should have been submitted to the jury notwithstanding the defendants’ special pleas. The tidal court erred in giving the general charge for the defendants as to the entire complaint.

Nor are we impressed with the suggestion that the defendants were entitled to the general charge, upon the idea that the mill was owned and operated by H. D. Gantt alone, and not by the firm of which he was a member. The existence of a partnership was established beyond dispute; the only issue in this respect being as to whether or not said firm, or said H. D. Gantt alone, owned or operated the sawmill. The partnership having been established, the acts and declarations of the partners, whether made in the presence of each other or not, as to the nature and extent of their holdings, business, conduct, etc., was admissible. These declarations may have been of slight probative force when measured against the evidence of the defendants, yet it was for the jury to determine whether or not the mill was being operated by the firm when the plaintiff was injured. Moreover, there was no objection, to this evidence when it was brought out in the trial court. The evidence, however, was legal. — 5 Mayfield’s Digest, p. 740, § 12.

As we view this case, the plaintiff was guilty of negligence, and cannot recover unless the defendant H. D. Gantt was guilty of subsequent negligence, and which last inquiry is not covered by the defendants’ special pleas, except, perhaps, as to whether or not the negligence there set up was or was not the proximate cause of the injury. It is sufficient to say that plea 3 would be good with the word “negligently” supplied as a defense to initial negligence, but would not bar a recovery unless the negligence there set up, instead of the subsequent negligence of H. D. Gantt, was the proximate cause of the injury. The other special pleas, whether good or bad, can serve no good purpose upon the next trial.

The judgment of the circuit court is reversed, and the canse is remanded.

Reversed and remanded.

All the Justices concur, except Mayfield, J., dissenting.