Davis v. McCullers, No. 21635

No. 21635 | Miss. | Mar 15, 1921

Holden, J-.,

delivered the opinion of the court.

This is a suit by John McCullers,, for himself and his two daughters, Beatrice McCullers and Sidney McCullers, against the Yazoo & Mississippi Valley Railroad Company to recover damages for the death of Mrs. John McCullers and her infant daughter, Frances McCullers, who were killed at a road crossing near Matson, Miss., by a collision between the automobile in which they were riding and a passenger train of the railroad company. Mr. John Mc-Cullers was the wife of the plaintiff John McCullers, and the mother of Beatrice McCullers and Sidney McCullers. The infant daughter Frances was the daughter of John McCullers and the sister of Beatrice and Sydney McCullers. From a judgment for fifty thousand dollars in favor of the plaintiff, this appeal is prosecuted.

The case is here for the second time (see Hines, Director General, v. McCullers, 121 Miss. 666, 83 So. 734), and reference is made to the opinion written in the former decision, which states the facts and law of the case. On the second trial of the case the testimony was practically the same as that given at the first trial. The liability of the railroad company for negligence was determined upon the sole question of whether or not the statutory signals were given by the defendant railroad on approaching the crossing where the collision occurred. There were many witnesses introduced by both sides on this contested question of fact; the witnesses for the plaintiff testifying that the required signals were not given, and the witnesses for the railroad company testifying that they were given. The jury decided the dispute in favor of the plaintiff, and assessed the damages at fifty thousand dollars.

The railroad company, appellant, now complains that the lower court erred in granting certain instructions for the plaintiff and in refusing certain instructions requested by the defendant.

We find no substantial error in the instructions granted the plaintiff, when read together, except instruction 3, charging the jury that the appellant was entitled to recover for the services of the infant daughter during the remainder of her life. This was error, because the father was entitled to the services of his child only until she was twenty-one years of age. It was also error, in this instruction, to tell the jury to find “for each and every character and kind of damages which they may believe the beneficiaries suffered,” because-this announces a rule much too broad, permits speculation and conjecture, and is not limited to the proper elements under the law. This instruction also permits a recovery of “full condensation” to all beneficiaries for all kinds of damages. This error was calculated to mislead the jury with reference to, and influenced it against, diminishment of damages on account of contributory negligence.

However, these errors, standing alone, would not cause a reversal of the case on the question of liability, but, coupled with the error of the court in refusing to grant instruction No. 5, asked by the defendant, charging the jury that Mrs. McCullers was guilty of contributory negligence proximately contributing to the accident, we think the judgment must be reversed as to the amount of damages. It is our opinion, from the facts and circumstances in this case, Mrs, McCullers was guilty of contributory negligence as a mat - ter of law, and the court should have so instructed the jury. That the jury did not .diminish the damages on account of the contributory negligence of Mrs. McCullers, as it should have done, is manifest, which failure to diminish resulted in the excessive verdict of fifty thousand dollars.

The undisputed proof in the case shows that Mrs. McCullers, the mother of Beatrice and Sydney, ivas'in charge of' the party riding in the automobile, and that she was entirely familiar with the railroad crossing at which they were struck. She had crossed it many hundreds of times, and knew on this occasion that she was about to cross the railroad track, and that she was riding in a closed car, which made it difficult to hear any sound made by a train on the outside, and that the dusty condition of the atmosphere at the time and the closed car made it hard to see the train and also knowing that the train was due at that point at that time, yet she permitted her daughter driving the car, without objection or caution, to proceed to go upon the track without taking any reasonable precaution to observe the danger of the situation at the time. Under these circumstances a reasonably prudent person would not have gone upon a railroad crossing, known to be dangerous, without looking or listening for an approaching train.

It is our judgment that the negligence of Mrs. McCullers contributed to her injury, and that if the court had instructed the jury that she was guilty of contributory negligence, and the jury had diminished the amount of damages, for her death, in proportion to her negligence, and eliminated the unwarranted damages, the verdict in this case reasonably should not have been more than twenty-five thousand dollars. But the failure of the jury to take into consideration the contributory negligence of Mrs. McCullers, and diminish the amount of damages in proportion thereto, has resulted in an excessive verdict, for which we must reverse the judgment and reinand the case for a new trial on the question of damages only, unless the appellee will enter a remittitur here, reducing the amount of the judgment to twenty-five thousand dollars, in which event the judgment will be affirmed.

Reversed .as to damages only, unless remittitur for twenty-five thousand dollars is entered here.

Remittitur agreed to and entered as per opinion.