Hand v. Boatner , 130 Miss. 292 ( 1922 )

Sykes, J.,

delivered the opinion of the court.

The appellee, Clayton Boatner, by next friend, sued the appellant for- damages for personal injuries, arid recovered judgment for one thousand dollars. From which judgment this appeal is prosecuted.

The negligence alleged in the declaration is: First, a defective construction of the sawmill, namely, that the carriage and carriage block passed over a part of the roller bed, leaving a space of about one-half inch in which the hand of the slab tripper might get caught between the carriage block and the roller bed; and, second, that the master should have furnished appellee a hook or some kind of appliance with which to trip slabs.

The testimony of the appellee shows that his hand was caught and mashed between the saw carriage and the roller bed, also that he was not furnished with a hook or appliance with which to take the lumber from the carriage and place it upon the rollers.

There is no testimony in the record to show that the construction of the mill in this manner was improper or negligent. The testimony shows also that an experienced slab tripper could use a hook for this work, but that it would be more dangerous to other employees for an inexperienced man to use a hook. This appellee was not shown to be a man of such experience that he could properly use a hook. The testimony does not show that it was improper or negligent for the master to have instructed this employee to do this work with his bare hands.

It was incumbent upon the plaintiff to prove the negligence of the master in one or both of the instances as charged in the declaration. It is not a case where the prima-facie negligence statute is applicable. Neither does the doctrine of res ipsa loquitur apply.

The testimony merely shows the construction of the mill, but does not show an improper construction thereof; neither was there any negligence shown by failure to furnish this employee with a hook.

At the conclusion of the testimony the appellant (defendant in the circuit court) requested a peremptory instruction. This instruction should have been granted.

Reversed, and judgment here for appellant.

Reversed.