Mississippi Cotton Oil Co. v. Ellis

Whitfield, J., delivered the opinion of the court. We do not think there was any error in granting plaintiff’s fifth instruction. Ernest Gaston testified positively that there was no warning; Kelly and appellee that they heard none. The best possible evidence as to whether a warning, given by the [199] human voice, was heard at a particular placej is the testimony of persons of average hearing stationed, at the time of the warning, at that place. Some employes, not at the precise place, say they heard it. These three persons, at the very place, say they did not, and one that there was no warning. Appellee says they were talking to each other, but not so loud as not to hear any unusual sound, and they were all in two or three feet of each other. It is a most pregnant fact that none of the three did anything to indicate they had heard — made no effort to escape. Wall’s statement is largely, of necessity, his opinion that his voice, as pitched on this occasion, could, under the circumstances, have been heard at that distance, and at that place. The instruction seems to us, in the light of the testimony, correct. The fourth instruction is said to have been not properly given for plaintiff. Whether he knew of the custom or not, he had a right to rely on the duty of the appellant, under the circumstances shown in this record, to notify him. He saw the guard. He took the place of work assigned him, with the legal duties arising out of the character of such place; res ipsa loqui-tur — the environment spoke the duty of the appellant to give notice to him of impending peril. He had been working on the ‘ ‘ hospital switch. ’ ’ Appellant, the verdict finds, moved him in under the shed. ' These oil cars were not for transportation. There was a space of thirty feet between the end of the box cars and the first oil car. Appellee’s back, stenciling as he was, was necessarily towards the entrance. If the custom was unknown to him, he knew the duty which the situation thus made imposed on appellant, and his rights depend on that duty, and not on a custom, known or unknown, framed in obé-dience to that duty. If the charge be criticisable as not referring rather to the duty than the custom, it would still not be reversible error, in view of all the instructions and the testimony. See Railroad Co. v. Bailey, 40 Miss., 395; 8 Am. & Eng. R. R. Cases, 480. [200] The appellant was granted further instructions, drawn with consummate skill, and presenting to the jury the law applicable, under its theory of the case, freely — perhaps too liberally for appellant. We find no error, and the judgment is Affirmed.