No. 24722. | Miss. | Mar 9, 1925
There were two counts in the plaintiff's declaration; the first count alleged negligence of the railroad in failing to give the required warning signals upon approaching the public crossing, and the second count charged negligence in permitting the approach to the crossing to be obstructed so that the engineer could not see an approaching vehicle, and the occupant of the vehicle could not see an approaching train, and that also under these circumstances the engineer was negligent in not blowing his whistle while running over the crossing at a high rate of speed and knowing that it was a crossing frequently used by travelers. At the close of the testimony the court granted a peremptory instruction to the railroad as to the second count of the declaration. The chief errors complained of on this appeal are that the court erred in giving the peremptory instruction for the defendant on the second count, and also erred in granting certain other instructions to the defendant. We shall dispose of the contention of the appellant as to the refusal of the court to submit the question of negligence on the second count by holding that the proof offered to sustain that count was insufficient, and the court was correct in peremptorily charging the jury that no recovery could be had on the second count. The declaration charged in the first count, and the testimony offered by the plaintiff went to show, that the whistle was not sounded nor was the bell rung by the engineer upon approaching *367 the crossing, as required by the statute. The defendant railroad company proved by its witnesses that the bell was rung as required by law, and that it was guilty of no negligence in striking on the crossing the bus in which appellant was riding. The sole and sharp issue of fact presented to the jury was whether or not the bell was rung before reaching the crossing as required by the statute. Upon a clear conflict in the evidence upon this question of fact, the jury rendered its decision in favor of the appellee railroad company.
With this conflicting testimony before the jury, the court granted the following instruction, No. 1, to the defendant railroad company, which we quote as follows:
"The court charges the jury for the defendant Gulf Ship Island Railroad Company that the law presumes, and the jury must consider, that the whistle was blown, or that the bell was rung, as required by law. The law imposes upon the plaintiff the burden of proving by a preponderance of the testimony and the weight thereof that the whistle was not blown or the bell rung, as required by law, and unless the plaintiff has so proven, by the preponderance of the evidence, the failure to blow the whistle for the highway crossing or to ring the bell for the crossing, as required by law, it is the sworn duty of the jury to find that the whistle was blown, or the bell rung, as the law requires, and to return a verdict of: `We, the jury, find for the defendant, the Gulf Ship Island Railroad Company.'"
The appellant complains that this instruction is erroneous and misled the jury to his prejudice. We think the court erred in granting the instruction, and believe that it was substantially harmful to the appellant on the trial of the case, and must result in reversal here.
The instruction is erroneous, in that it tells the jury "that the law presumes and the jury must consider that the whistle was blown, or that the bell was rung, as required by law." All of the facts and circumstances connected with the injury were fully disclosed by the evidence *368 in the case, and as to whether the bell was rung or the whistle sounded the testimony of the witnesses went to prove or disprove this disputed fact, and therefore it was for the jury to determine upon the evidence in the case whether the bell was rung or the whistle sounded, and, since all the facts were in evidence on this issue, the common-law presumption that the railroad had performed its duty was eliminated from the case, and the truth as to whether these statutory signals were given was to be determined by the jury upon the evidence introduced, and not upon any presumption of law. The presumption must yield to the facts.
When all the facts disclosing how the injury occurred were submitted to the jury, the statutory presumption of negligence "caused by the running of cars" went out of the case, and at the same time the presumption in favor of the railroad that it was obeying the law disappeared from the case, and the jury should have decided the issue upon the testimony alone. Of course, the burden of proving his case, as a whole, still remained with the plaintiff.
This character of instruction is bad and harmful in this, that, where there is a sharp conflict in the evidence on the vital issue in the case, making it difficult to decide, the jury may be led to follow the presumption charged by the court, and thus the case would not be determined upon the testimony given by the witnesses, as it should, and very likely would result inimically to the interests of the opposite party.
We have above mentioned the principal objection to the instruction. However, telling the jury in the instruction that the law presumes, and they must so consider, that the whistle was blown was also objectionable, because there is no proof in the case whatever that the whistle was blown for the crossing; on the contrary, all the witnesses said that the whistle was not blown.
There are other instructions in the record complained of, for instance, instruction No. 3 given the defendant, which is as follows: *369
"The court charges the jury for the defendant Gulf Ship Island Railroad Company that, if you believe from the evidence in this case that the negligence of Waddell, the driver of the bus in question, in failing to look for an approaching train, if you believe from the evidence he failed to look, or his negligence in failing to stop the bus before driving it on the crossing, either one or both were the proximate cause of the injury to plaintiff, then it is your sworn duty, as to the defendant Gulf Ship Island Railroad Company, to return the following verdict: `We, the jury, find for the defendant, the Gulf Ship Island Railroad Company.'"
It is contended by appellant that this instruction is wrong for several reasons; the main one being that it was error to charge that, if the negligence of the bus driver in going upon the track "was the proximate cause of the injury to plaintiff," the jury should find a verdict for the defendant; the argument being that the jury is told to find for the defendant even though the concurring negligence of the railroad may have proximately contributed to the injury, and that the instruction would be more nearly correct if it had told the jury that they should find for the railroad company if they believed the negligence of the bus driver was the "sole cause" of the injury, or that there was no concurring negligence upon the part of the railroad.
We deem it unnecessary to do more than point out the complaint regarding the above instruction, because the judgment of the lower court will be reversed upon the error in granting instruction No. 1 to the defendant.
The judgment of the lower court is reversed and the cause remanded.
Reversed and remanded. *370