Barrow County Cotton Mills v. Farr

Bell, J. (After stating the foregoing facts.) It is suggested in the brief of the attorney for the defendant in error that a demurrer to the petition was overruled, and that since no exceptions have been taken to that judgment, the petition stands as sufficient under the law of the case, and that, gauging the evidence accordingly, a verdict for the plaintiff would have been authorized. The defendant in error has not sought to have the demurrer and the judgment thereon included in the record, but, even assuming that a general demurrer to the petition was overruled without exception, we are still of the opinion that a verdict for the defendant was demanded, and therefore that the court erred in setting it aside. It is well settled that if a particular verdict is demanded, even the first grant of a new trial is error, irrespective of any errors in the charge of the court. The plaintiff testified that the pipes, in several places, had been leaking, and that he had seen the water standing about them for some days before his injury. The “spot of ice” on which he slipped was about as big as a table pointed out in the court-room. He had not seen the ice before, but there was nothing to hide it from him. He did not think anything about the dangerous condition of the yard until he got hurt. He did not know what caused the bale of cotton to fall, except that a bale starting the other way “kicked this one” and it fell on him. He was required to be on the yard practically every day at that time of the year. He did not think [733] the cotton was tied with ropes, and there was, on the truck, no guard-rail nor anything to prevent the cotton from falling. The plaintiff further testified: “ On this particular occasion I had two vehicles running, a dray driven' by Mr. Roberts and a truck driven by Jack Kemp. I also had some colored help, helping to load and unload. . . Sometimes we would stack this cotton on the truck and sometimes we would stand it on the ends. ,. . I hired these men. . . I hired the men in my department. . . These boys that I named yesterday, their duties were to do anything I told them to do. . . Thejr were working under my supervision. 1 sent them out there to help haul that cotton. . . If we were hauling cotton from a distance we would tie ropes around it; of course, when we were unloading it we had to take the ropes or rails, or whatever was holding the cotton, off, to unload it. When unloading cotton, if we have it fastened on or had guard-rails around it, we would have to take them off of at least one side.” There was no other evidence tending to show negligence by the defendant or illustrating the conduct of the plaintiff. Whatever else might be said with respect to deficiencies in the evidence, it conclusively appeared that the plaintiff failed to prove the allegation of the petition that he did not have equal means with his master of knowing of the danger which resulted in his injury, and consequently he was not entitled to recover, whether the petition be taken as the law of the case or whether his right was to be established under the law of the land. The verdict found for the defendant having been demanded, the court erred in granting a new trial. Judgment reversed. Jenlcins, P. J., and Stephens, J., concur.