Gulf & Ship Island Railroad v. Boswell

85 Miss. 313 | Miss. | 1904

Truly, J.,

delivered tbe opinion of tbe court.

Under tbe facts of this record as disclosed by tbe original papers we think tbe contention of appellee tbat we should not consider tbe assignment of error based upon tbe action of tbe court in granting and refusing instructions because tbe instructions are not marked and filed in conformity witb tbe statute, nor embodied in a special bill of exceptions, is unsound. Tbe original papers show tbat tbe instructions were in some manner so marked as to show tbat they were acted upon by tbe court and filed by tbe clerk. We think tbe argument tbat each particular piece of paper containing an instruction must be separately marked and filed by tbe clerk too narrow a construction of the law. This case is plainly distinguishable from Swann v. West, 41 Miss., 104. In that case, as we gather from the report, there was no way to show that the instructions were, in truth, properly a part of the record. In any other view the decision in that case would not be maintainable. In the instant-case' all of the instructions are either attached one to another, .and thus marked and filed, or each contains a notation of some character sufficient to show the action thereon by the court and the filing thereof by the clerk.

But when we consider the record as presented, the stenographer’s notes already having been stricken out, we are unable to say that any fatal error was committed on the trial below. The argument of appellant that some of the instructions granted for the appellee were not proper under any state of case, and that some of the instructions refused appellant should have been granted in every state of case, even if granted, in no way assists us in solving the question whether or not material error was committed. In the absence of anything in the record to demonstrate that wrong was done the appellant, we must presume, under the well-settled doctrine, when no specific error is indicated, that the jury followed the instructions which were properly granted, and that the right result was reached.

Again, as to several of the instructions which appellant strenuously urges announce inapplicable principles of law, we find that the same propositions are propounded by the instructions which it asked for and received. Thus the appellant contends that the rules of law announced by § § 3546-3549, Code 1892, were not properly applicable to the case at bar; and yet we find that the second instruction requested and granted appellant in the court below charged the jury that, if they believed certain facts in evidence were true, then the railroad company was not liable, unless they should further believe that its employes “were operating their trains in violation of the law with reference-to the rate of speed they should run in an incorporated town, or with reference to the rate of backing in more than three miles an hour, or with reference to being preceded by a person on foot, or with reference to sounding its whistle or ringing its bell.” To the same effect are the third and eleventh instructions granted the appellant. This was an express recognition of the applicability of the legal propositions stated therein, and appellant cannot now be heard to dispute or deny their correctness. To allow this would permit a litigant to contest a case in the trial court on one theory, and, if unsuccessful there, secure in the appellate court a reversal of the judgment because of error in the legal principle which he had himself invoked, or at least acquiesced in, as being both correct and applicable. To show the absolute justice of this conclusion it need only be noted that in the instant case the soundness of the several propositions here attacked was neither doubted nor denied in the court below, the appellant in no instance asking the court to instruct that any one of the code sections cited was not applicable to the case there made. If there was error in the ruling of the court in refusing any of the instructions denied the appellant, it is not so glaring as to be plainly apparent from an inspection of the bare record, the notes of the evidence being lacking.

The instruction authorizing the allowance of punitive damages if the jury believe in the existence of a certain statement of facts being correctly phrased, we are unable to state that the granting of the instruction was not warranted by the proof, or, if unwarranted, that it was prejudicial to the rights of appellant. We are without proof as to the extent of the injury suffered or the circumstances under which it was inflicted; and, being so without proof, we cannot say that the jury awarded-any punitive damages. If we refer to the declaration for a statement of the injuries inflicted, and accept that statement, the amount awarded is manifestly not excessive, even though appellee had been restricted to the recovery of purely compensatory damages.

We are unable to say with any degree of confidence that any error prejudicial to appellant was committed or that the result reached is not in accordance with law and justice, and under such circumstances the judgment must be affirmed.

Affirmed.