Alabama & Vicksburg Railway Co. v. Overstreet

Citations

• 85 Miss. 78

Syllabus

<p>1. Master and Servant. Railroads. Death of servant. Instruction, Evidence.</p> <p>In an action for death of an employe by the falling of a bridge timber on him while at work under the bridge, the court charged ■ that if defendant’s foreman directed another servant to go on the bridge and first take off the nuts on bolts in timbers in the bridge, used to hold said timbers safely, and to knock the holts out of the timbers, “and then put ropes around the timbers and lower them, and that the doing of such acts were negligent,” and the foreman was present when such negligent work was performed, and deceased lost his life from a piece of timber falling on him when it was being so removed, defendant was liable. Held, that in the absence of evidence fixing any order in which the taking off the nuts, the knocking out of the bolts, and the lowering of the timbers should be done, the instruction was prejudicially erroneous in the use of the words “first” and “then.”</p> <p>2. Direction of Supervising Agent. Construction of testimony. Order of events.</p> <p>An order from a bridge foreman to one of his crew engaged in repairing a bridge to take off the nuts and knock the bolts out of a brace and get a line and lower it, is not negligent as to an employe at work under the bridge who is injured by the falling of the brace when left unsupported, since the direction cannot be construed as prescribing the order in which the several acts necessary to the lowering of the brace were to be done.</p> <p>3. Damages. Future prospects.</p> <p>Where, in an action for death, there was no evidence as to decedent’s prospects for the future, or as to his expectancy of life, a charge authorizing the jury, on the issue of damages, to consider deceased’s physical condition at the time of his death, the wages he was then earning, and his future prospects, and the probable length of his life, was error.</p> <p>4. Custom. Evidence.</p> <p>In an action for death of a servant by the falling of a brid