Schaffer v. Deemer Manufacturing Co.

Citations

• 108 Miss. 257
• 66 So. 736

Syllabus

<p>1. Master and Servant. Action for injuries. Questions for jury. Dismissal and nonsuit. Time for taking.</p> <p>Where plaintiff brought suit for personal injuries sustained while assisting as an employee in loading logs upon one of defendant’s logging trains by the falling of a tree upon him, and the evidence failed to show that the tree was cut by any one of the defendant’s employees or that defendant was in any way responsible therefor, but only showed that some of defendant’s employees were cutting timber in the vicinity of the accident a short time afterwards, a peremptory instruction for the defendant should have been given. ' '</p> <p>2. Dismissal and Nonsuit. Voluntary nonsuit. Time of taking.</p> <p>Under Code 1906, section 802, providing that every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom unless he do so before the jury retire to consider of its verdict,' a plaintiff cannot take ' a nonsuit after the court has granted' a peremptory instruction for the defendant as when such an instruction is granted the cause stands as though it had been submitted to a jury and a verdict had been returned.</p> <p>3. Same.</p> <p>A request for a peremptory instruction presents an issue of law, to be tried by the judge, and the common-law rule forbidding a nonsuit after the judge has pronounced his judgment would 'in such case preclude plaintiff from taking a nonsuit.</p> <p>4. Trial. Taking case from jury. Peremptory instruction. Efect.</p> <p>Where a peremptory' instruction is granted, it is not necessary for' the jury to actually retire and find the verdict directed, the ■ court should simply render'judgment,-as if Upon, verdict found.</p>