J. J. Newman Lumber Co. v. Dantzler

Citations

• 107 Miss. 31
• 64 So. 931

Syllabus

<p>1. Master and Servant. Action. Separate causes of action. Declaration. Injury to servant. Negligence of employee. Appeal and error. Harmless error. Admission of evidence. Assumption of rishs. Trial. Misleading instructions. Application to evidence.</p> <p>In an action by a servant against the master for personal injury where the gist of the first count in the declaration is that defendant was negligent in its failure to properly instruct and warn plaintiff of the dangers incident to the operation of the machine he was employed to operate, the fact that this count further describes in circumstantial detail the machinery, its location, character and the manner in which the same was operated, does not make the count duplicitous.</p> <p>2. Same.</p> <p>Where the gist of the second count in such declaration is that during the operation of the machinery a dangerous defect developed in the machinery, and this was known to defendant, and it was then the duty of the master to repair the same, and failing to do so, the master was negligent and responsible for all damages resulting from the neglect of its duty to plaintiff, the fact that this count further reiterates a description of the machinery and the method of its operation, which other aver-ments were intended to negative the idea that plaintiff, after he knew of the danger, assumed the risk of continuing the work, does not make such count duplicitous.</p> <p>3. Master and Servant. Injury to servant. Negligence of employee.</p> <p>Where it was the duty of the coemployee to instruct another employee and to keep the machinery in proper condition, and his attention was directed to the defect which caused the injury, his failure to repair the defect was the negligence of the master.</p> <p>4. Appeal and Error. Admission of evidence. Harmless.</p> <p>In a suit for personal injury by a minor, it was error to admit evidence that he was employed by defendant without the consent of his father, there being no averment in the de