ON SUGGESTION OF ERROR. In our original opinion we called attention to the difference between the rule when an injured party fails to avoid further damage so far as he reasonably can after the injury has in part been inflicted, and the rule which applies when the injured party fails to take reasonable care to avoid a threatened injury but no part of which has yet happened at the time of his negligent failure; and we said that in the latter case the negligence is contributory and, under our statute, Section 511, Code 1930, affords no complete defense in favor of the original wrongdoer.
Appellant in its suggestion of error now contends that we were under a mistaken impression when we said that, at the time of the asserted negligence on the part of Saxon, appellee's foreman, in not intercepting the fire, it had not at that time reached appellee's premises; and appellant now urges that the testimony is undisputed that at the time the fire had already reached and was upon appellee's property adjacent to the gin. We here quote from page 17 of appellant's original printed brief: "None of plaintiff's property had been touched by the fire up to the time Saxon left the premises." So it is *Page 735 that appellant has taken one position as to the facts in its original argument, and the reverse position in respect to the same facts in its suggestion of error.
But the reversed position which appellant now takes does not aid appellant, under the record as made, for if the fire had already reached the gin premises and was upon appellee's private property, she would in that case be entitled to recover at least nominal damages, and that in itself is enough to avoid the peremptory instruction. See the recent case, Brewer v. Universal Credit Co., Miss., 192 So. 902, and the authorities therein cited. The only instructions requested by the appellant were those which proposed an absolute bar to any right of recovery at all; there was none given or requested which submitted any theory of diminution of damages under either of the rules mentioned herein.
Suggestion of error overruled.