83 So. 734 | Miss. | 1920
delivered the opinion of the court.
This is an - appeal from a judgment awarding the appellee damages for the death of two persons alleged to have been killed because of the negligence of the servants of the appellant. At Matson, Coahoma county, Miss., the track of the Yazoo & Mississippi Valley Railroad Company runs approximately north and south, and a public road runs parallel therewith on the west side thereof and crosses at right angles to the east side of the track one thousand six hundred and seventy-six feet north of Matson station. The distance from the railroad track to this public road on the west side thereof is from fifty-five to sixty-five feet, and at the
The negligence with which the appellant is charged in the declaration is: First, in the maintenance of the crossing; and, second, in the operation of its train at the time of the accident. One of the appellant’s contentions in the court below was that this road on which the deceased persons were traveling at the time they were killed was not a public one, hut the evidence relative thereto was conflicting. The evidence with reference to the condition of the crossing was that it “had been washed off; the embankment on each side had been washed off right smart, and it was narrow, . 1 . it was a pretty steep grade, . . .
The fireman was engaged in putting coal in the engine’s furnace as the train approached the crossing, and did not see the automobile until after it was struck.
The whistle of the engine was blown just before the train reached Matson, which station the train passed Avithout stopping,. and the engineer and fireman testified (section 4045, Code of 1906; Hemingway’s Code, section 6669), that the bell of the engine was rung continuously for more than three hundred yards as it approached the crossing, as did several other witnesses who saw the train as it passed. Other wit
' One of the appellant’s pleas was to the effect that there was a mis joiner of causes of action, to wit, one for the death of Mrs. McCullers, and the other for the death of Francis McCullers. This plea on motion of the appellee was stricken out. No point is made on this method of disposing of the plea.
The assignments of error bring under review, among other things: (1) The alleged misjoinder of cause of action; (2)the refusal of the appellant’s request for an instruction peremptorily charging the jury to return a verdict in his favor; (3) The refusal of the appellant’s request for an instruction charging the jury not to award
First. Causes of action in favor of the same plaintiff and against the same defendant, of the 'same nature, and subject to the same character of defense and judgment may be joined in one declaration, even though the pleas thereto may be different. Andrew Stevens, Pleadings, 356; 1 C. J. 1067; Railroad Co. v. Hirsch, 69 Miss. 127, 13 So. 244. It is true that this rule is subject to the qualification “that the causes of action must be in the same right.” For example, a person cannot join in the same action a cause of action accruing to him individually to one accruing to him in a representative capacity. McVey v. Railroad Co. 73 Miss. 487, 19 So. 209. But such is not the case here for the cause of action sued on each accrued to the plaintiff in the same right by virtue of chapter 214, Laws of 1914 (Hemingway’s Code-, section, 501).
Second. One of the appellant’s contentions is, and we will assume, that Beatrice McCullers failed to exercise due care to ascertain whether or not a train was approaching before she drove’ on the railroad track and consequently was guilty of negligence which contributed to the killing of her mother and sister. Another of its contentions, the evidence in support of which it will be unnecessary for us to set forth, is that Beatrice was driving the automobile as her father’s agent.
The grounds upon which the appellant requested that a verdict be directed in his favor, as set forth in the brief of his counsel, are:
The right of the appellant to maintain this action is conferred and measured by chapter 214, Laws of 1914 (Hemingway’s Code, 501), and the sole test therein contained of the right to maintain such an action is the right of the person injured to have maintained an action therefor had death not ensued. Kirkpatrick v. Ferguson-Palmer Co., 116 Miss. 874, 77 So. 803. Had Mrs. or Francis McCullers lived and sought themselves to recover of this appellant the negligence of Beatrice which may have contributed to their injury would not have barred their recovery (20 R. C. L. 158;. Railroad Co. v. Davis, 69 Miss. 444, 13 So. 693; Railroad Co. v. McLeod, 78 Miss. 334, 29 So. 76, 52 L. R. A. 954, 84 Am. St. Rep. 630); consequently her contributory negligence cannot avail the appellant here (McKay v. Syracuse Ry. Co., 208 N. Y. 359, 101 N. E. 885; Braun v. Buffalo General Elec. Co., 213 N. Y. 655, 107 N. E. 338; Southern Ry. Co. v. Shipp, 169 Ala. 327, 53 So. 150; Wymore v. Mahaska Co., 78 Iowa, 396, 43 N. W. 264, 6 L. R. A. 545, 16 Am. St. Rep. 449; Wilmot v. McPadden, 78 Conn. 276, 61 Atl. 1069; Watson v. Southern Ry. Co., 66 S. C. 47, 44 S. E. 375).
Contributory negligence as a defense in an action for a tort is grounded on the common-law rule that tlie law will not apportion the consequences of eon curring acts of negligence. This rule may be modified
The peremptory instruction was properly refused.
Third. For the same reason the instruction that no recovery could be had for the benefit of Beatrice ivas also properly refused.
Fourth. The first ground on which the appellant seeks to sustain his request for an instruction charging the jury not to award a recovery for the death of Francis is the contributory negligence of Beatrice, which bas been disposed of in what we have heretofore said in discussing his request for the general charge. The second ground upon which this request is sought to be sustained is similar to the first, is ■ governed by the same rule, and is that Francis, who was four years old, had been confided by her father on the occasion in question to the care of Mrs. McCullers; that Mrs. McCullers was negligent in permitting Beatrice to drive onto the crossing without ascertaining whéther a train was approaching, which negligence must be imputed to the father and the other beneficiaries herein. The instruction was properly refused.
What we have hereinbefore said with reference to the effect of the contributory negligence of Beatrice upon the right of the appellee to recover will also v dispose of other contentions of the- appellant, not herein specifically referred to which are grounded thereon.
Fifth. The appellee’s instruction No. 16- is as follows:
“The court instructs the jury that, if you believe from the evidence that the crossing in question was a highway, under, the law in Mississippi it was the duty*675 of the defendant to make proper and easy grades in the highway at which the deceased were killed, so that the railroad might there be conveniently crossed, and to keep snch highway in good order, and if the jury believes from the evidence that the defendant did not comply with this duty imposed upon it by the law in any respect, then such conduct on the part of the defendant was negligence, and if they believe that such negligence in any way or to any extent' contributed to bring about the death of the deceased, then they will find for the plaintiff.”
The appellant’s duty to keep the crossing in good order was also set forth in the appellee’s third and fourteenth instructions. These instructions should not have been given for two reasons: First, the evidence will not justify a finding that the appellant was negligent in the maintenance of the crossing;- and, second, if it was negligent with reference thereto it is manifest from the evidence that the condition of the crossing in no way contributed to the accident.
Instruction No. 19 is as follows:
“The court instructs the jury that, if they believe from the evidence the crossing in question was a highway, it was the duty of the defendant to cause a board to be erected and kept upon a post or frame, sufficiently high, at the highway where the deceased mother and daughter were killed, with this inscription thereon, ‘Look out for the Locomotive,’ or this inscription, ‘Bail-road Crossing,’ and that under, the law the said defendant is made liable to any party injured by sucli failure or negligence for all damages he may have sustained thereby, if such failure or negligence was the proximate cause of the injury.”
The duty of the appellant to place such a sign at the crossing was also set forth in the appellee’s third ininstuction It appears from the evidence that the appellant failed to maintain.at this crossing a sign with the inscription thereon “Look out for the Locomo
The negligence charged in the appellee’s declaration and to which, under elementary rules of procedure, the jury should have been confined in their deliberation, is in the operation of the train and the maintenance of the crossing. There is nothing in the evidence to warrant a finding by the jury that the negligence in the maintenance of the crossing contributed to the striking of the automobile by the appellant’s train, or- that the appellant’s engineer failed to keep a proper lookout; consequently the jury should have been confined on the question of negligence to determining whether or not the bell w.as rung while the engine was approaching the crossing, and not have been permitted, as they were by the appellee’s seventh instruction, to find for the plaintiff “if you believe that the railroad company was negligent in any respect that proximately cause the killing;” by the-fourteenth instruction if “the defendant was otherwise guilty of any intervening negligent act which operated to bring- about the death of the deceased;” by the eighteenth unless “the defendant was
The error in these instructions, particularly in the' sixteenth and nineteenth, was not cured by the granting of the appellant’s twenty-third instruction, by which the jury were charged to “find for the defendant unless they . . . believed from the evidence that the defendant failed to ring the bell for three hundred yards before entering upon the crossing, and that this failure alone was the proximate cause of the injury.”
The appellee’s instructions Nos. 18 and 20 are as follows:
“(18) The court instructs the jury that, while the burden of proof *is upon the plaintiff in this case to make out his case in order to entitle him to a verdict at the hands of the jury, this does not mean that the plaintiff must prove that the defendant was guilty of any negligence whatsoever which brought about or contributed to the death of Mrs. MpCullers and her daughter John Francis MeCullers. The law presumes that the defendant was guilty of negligence and negligently and wrongfully produced their death from the mere fact of their being killed by the operation of the engine No. 1.949, and the jury will return a verdict for the plaintiff unless the defendant has explained all the facts and circumstances surrounding the" killing, including evidence of the manner in which the defendant operated the said engine and train, and such facts satisfy the jury that the defendant was free from all negligence of every character which contributed to bring about the injuries com*678 plained of in plaintiff’s declaration, and, unless the jury-are so satisfied from the evidence that the defendant was free from all negligence in the killing of the deceased, then the jury will find a verdict for the plaintiff.”
“(20) The court charges the jury that the fact that Mrs. Sidney Montroy McCullers, and her infant daughter, John Francis McCullers, were killed by the runing of the locomotive and train of the defendant, is prima-facie evidence of negligence on the part of the defendant, and they will find a verdict for the plaintiff, unless the whole proof satisfies the jury that the defendant was entirely free from negligence in killing them.”
The appellee is not entitled to recover from the appellant unless the death of Mrs. and Francis McCullers was caused by the appellant’s negligence, and the burden of proving this fact was on the appellee. Because of the provisions of chapter 215, Laws of 1912 (Hemingway’s Code, section 1645), the appellee met this burden when he proved that Mrs. and Francis McCullers were killed by being struck by one of the appellant’s engines, whereupon, in order to meet the presumption of negligence raised by the statute, it devolved upon the appellant to prove all of the facts and circumstances surrounding the infliction of the injury from which an im ference of negligence vel non of the character counted on in the declaration could have been drawn, and in event it failed to prove these facts and circumstances, or the jury should have been unable for any reason to determine from the evidence what these facts and circumstances were, the presumption of negligence created by the statute would have prevailed, and the verdict should have been for the appellee. But it is not the law that, when the facts and circumstances of an injury have been explained by the defendant by evidence which the jury be-believe to be true', the jury must find for plaintiff unless such facts and circumstances “satisfy the jury that the defendant was free from all negligence , . . which
Sixth. Since the judgment of the- court below must be reversed because of the errors therein hereinbefore pointed out, it will not be necessary for us to determine whether or not the verdict is excessive.
Reversed and remanded.