DocketNumber: No. 33892.
Citation Numbers: 192 So. 306, 186 Miss. 861
Judges: <bold>McGehee, J.,</bold> delivered the opinion of the court.
Filed Date: 11/27/1939
Status: Precedential
Modified Date: 1/12/2023
The case presented on this appeal is substantially the same in all material particulars, so far as the testimony on behalf of the appellee is concerned, as that disclosed in the opinion of the court on a former appeal, as reported in the case of Jefferson v. Virginia-Carolina Chemical Company, Miss.,
The trouble encountered, however, in trying to apply that principle of law, so declared in the case of Tatum v. Crabtree,
The appellee testified again on the second trial, after relating that for a day or two prior to the accident the employees had followed a method of their own whereby a fellow servant on the inside of the box car would wait before trying to come out with his empty buggy until the servant with the loaded buggy could enter (under his right of way privilege over the metal bridge from the platform into the box car), that: "Mr. Calhoun come out and caught us, and he stopped us; had us go in a hurry, a lot of time go in a trot and come in a trot"; and that: "He said if we didn't quit, he would fire us — to hit the clock". "Q. If you didn't quit what? A. Didn't quit stopping and waiting for one to come in."
It was then shown that one coming out from the north end of the box car with an empty buggy could not have seen the appellee in time to avoid injuring him, if each of the servants were required to rush in and to rush out of the box car in the manner testified. Therefore, the result of the alleged command of the foreman, according to the testimony of the appellee, was that when he started into the box car with a loaded buggy, "another fellow was coming out; and as I got halfway in the car his buggy struck the left side of my buggy, and just knocked my hand up against the door facing and the Georgia buggy body".
Without discussing in detail the errors assigned in regard to the giving and refusal of instructions, we deem it sufficient to say that in our opinion the instructions given, when considered as a whole, fully and correctly announce the applicable principles of law governing the question of liability under the facts of the case, and that *Page 870 they are in conformity with the principles announced in the former opinion in regard to the state of case made by the proof.
The appellant also pleads a release, which was executed by the appellee shortly after the accident complained of, as constituting a full accord and satisfaction. The purported release recited payment of $11.60, but we think that the jury was warranted in believing from the evidence that the appellee did not receive any part of the alleged consideration; that he did not understand that the payment of this amount to the attending physician, and which was owing either by him or by the appellant to the physician, was intended to be in accord and satisfaction of the damages sustained on account of his injury. Upon conflicting testimony this issue was resolved in favor of the appellee, and we are not justified in disturbing the finding of the jury in that regard. Nor can we say that the amount of the verdict was excessive to such an extent as to evince bias, passion or prejudice on the part of the jury.
Therefore, the verdict and judgment of the court must be affirmed.
Affirmed.