Burns v. Alabama & Vicksburg Railway Co.

47 So. 640 | Miss. | 1908

Fletcher, J.,

delivered the opinion of the court.

Without deciding the point made as to whether this record as presented warrants us in considering the action of the court below in setting aside the first verdict, we think such action must be sustained on the ground that the verdict of the jury was excessive, a point distinctly averred in the motion for a new trial, and which might well have been the basis of the court’s action. It must be remembered that the jury was limited by the instructions to actual damages, and, though we believe that the question of punitive damages should have been submitted to the jury, yet the verdict must be tested in the light of the issues upon which the jury actually passed. Edmunds v. Mister, 58 Miss. 765. We cannot approve a verdict of $1,000 as actual damages in this case upon the showing here made as to extent of the injuries resulting from the alleged negligence of the company. We must therefore decline to reinstate the first verdict.

Coming, now to the second trial, the plaintiff’s testimony clearly establishes that the signal to stop was given at the usual place, in the usual manner, and as soon as the tyain came in sight around the curve. The engineer swears positively that he was on the lookout for signals, that it was an unusual thing for the train to pass Beechwood without stopping, and that, despite the inclement weather, he would have seen the signal had it been given in the’manner, testified to by plaintiff’s witnesses. This "brings the question of punitive damages squarely within the rule laid down in Wilson v. N. O. & N. E. R. Co., 63 Miss. 352; Yazoo & M. V. R. Co. v. White, 82 Miss. 120, 33 South., 970; Southern Ry. Co. v. Lanning, 83 Miss. 161, 35 South. 417. In view of the testimony here given, it was for the jury to say whether the failure of the employees to stop the train was wilful, reckless; or capricious; and the second instruction granted defendant, denying the right to punitive damages under any circumstances, was erroneous.

Reversed and remanded.