Brister v. Illinois Central Railroad

84 Miss. 33 | Miss. | 1904

Wi-iitfield, O. J.,

delivered tbe opinion of tbe court.

There was a verdict in. the court below for defendant. The errors insisted on by the plaintiffs (appellants) are chiefly with respect to the instructions given for the defendant. Learned counsel for the defendant insist very earnestly that, though there may be errors in the said 'instructions', nevertheless the testimony so overwhelmingly shows no liability on the part of defendant that the judgment should be affirmed notwithstanding such errors, if any. We have carefully g<5ne through the entire evidence in the case, and find ourselves unable to concur with, counsel for appellee in their view of the force and effect of the testimony as warranting a verdict for defendant. We deem it only necessary to say in respect to the evidence that it is such as not to warrant the interfering with a verdict, whether rendered for the plaintiffs or the defendant, in the absence of errors of law.

Turning to the instructions given to the defendant, we find instruction No. 3, which is in the following words:

“The-court instructs the jury for the defendant that the plaintiffs in this case cannot recover unless Brister & Co., under the evidence, could recover; and if they believe from the evidence in the case, or any part thereof, that Brister & Co., by their negligence, in any way contributed to the burning of the property, then they will find for the defendant.”

This instruction is fatally erroneous. The jury should have found their verdict on the entire evidence, not upon “any part thereof.” It is too obvious for comment that an instruction that tells a jury that they may find their verdict on any part of the testimony is manifestly wrong. The second error in this instruction is that it assumes that Brister & Co. were negligent. The j ury are not told if they believe from the evidence that Brister & Co. were guilty of negligence, etc., but the language used is this: “If they believe from the evidence in the case, or any part thereof, that Brister & Co. by their negligence,” etc. This is a clear assumption that they were negligent. The third respect in which the instruction is erroneous is in telling the jury that they should find for the defendant if they believed the plaintiffs “in any way” contributed to the burning of the property. This is not the correct announcement of the law with respect to contributory negligence. This court has declared in Railroad Company v. Mason, 51 Miss., 234, that, “to prevent a recovery, the plaintiffs’ negligence must proximately contribute to the injury,” and that, "“if the sole immediate cause of the injury was the defendant’s negligence, the plaintiff can recover, notwithstanding previous negligence of his own.” This principle is supported by many authorities cited in brief of learned counsel for appellants. In Railroad Co. v. Patton, 31 Miss., 193, 66 Am. Dec., 552, the court say: “It may therefore be considered as settled law that, though there be negligence or fault on the part of the plaintiff remotely connected with the injury, yet if, at the time'the injury was done, it might have been avoided by the exercise of reasonable care, prudence and skill on the part of defendant, the plaintiff may maintain his action for the injury.” It would be useless to add to the many authorities directly in point collated in brief of counsel. The principle is that the negligence of plaintiff, to constó tute contributory negligence, must be such negligence as directly and proximately contributed to the infliction of the injury. It is peiffeetly obvious, therefore, that this instruction is in three respects fatally erroneous.

The fifth instruction for the defendant is as follows:

“The court instructs the jury, for the defendant, that if they believe from the evidence that the employes of the defendant inspected the fire after six o’clock p.m. of the day preceding the fire, and that at this time there reasonably appeared to be no danger therefrom, and that there was no danger therefrom, and. that the danger, if any, arose subsequently to the inspection, and that the employes of Brister & Co., or the night watchman, might have, by the exercise of reasonable care, prevented the burning of Brister & Co.’s property, then the jury will find for the defendant.”

This instruction limits the care to be taken by the railroad company in order to prevent fire to the time of the inspection. This is error. There was a continuing duty on the part of the defendant railroad company to take proper precautions to prevent the fire (the railroad itself having set out the fires on its light of way near the mill property) as long as it allowed the firo to remain there. It should have been diligent to prevent the fire, not only up to the inspection, but throughout the continuance of the fires which it had so set out. The latter part of the instruction is also erroneous in not predicating the existence of contributory negligence on the part of Brister & Co. upon their knowledge that there was any danger to be guarded against. The instruction assumes that there was no danger for which the defendant was liable after the inspection, which is not the law. The danger might have arisen later, against which it was the duty of the defendant to guard; and it then proceeds to charge the plaintiffs with contributory negligence, without laying down any qualifications as to the necessity of knowledge on the part of the plaintiffs of any danger to be guarded against.

It is impossible to sustain 'this verdict on the face of these charges.

The judgment is reversed and the cause remanded.