55 So. 40 | Miss. | 1911
delivered the opinion of the court.
The appellant, Will Hollingshed, sued appellee, the Yazoo & Mississippi Valley Eailroad Company, for personal injuries, and recovered a judgment for one hundred and thirty-nine dollars and fifty cents, from which judgment appellant prosecutes this appeal.
At the time of. the injury complained of, appellant was employed as a cook for a railroad logging crew. A part of this logging train consisted of two camp cars, in one of which appellant did the cooking for the employes. These two camp cars, at the time of the injury, were standing on a spur track of appellee’s railroad, and appellant was in one of them, engaged about his duties. While so situated and engaged, one of appellant’s trains, in making a flying switch (the place being without the limits of any municipality), ran an engine onto this spur track, where the camp cars were standing, which collided with them; the impact causing appellant’s injuries. He was thrown to the floor, causing a fracture of three ribs, which confined him to his bed about two months. Appellant testified that the employes in charge of the train making the switch saw him in the camp car before the switch was made, and that in addition to and as a result of his physical injuries he paid twenty-seven dollars for medical attention, and lost two and one-half months time, which he valued at one hundred and twelve dollars and fifty cents, making a total of one hundred and thirty-nine dollars and fifty cents, the amount of the verdict in his favor.
The declaration charges that appellant’s injuries were the result of a flying switch; that appellee’s employes, in charge of the train making such flying switch, knew that appellant was in the camp car, and in making the switch, under the • circumstances, such employes were grossly negligent, and acted willfully and out of a spirit of disregard for the rights of appellant. By instructions numbered 1, 3, 4, and 5, the jury were directed to return a
In giving and refusing these instructions, respectively, the court below manifestly acted on the theory that appellant was not entitled to recover anything, unless intentional wrong or gross negligence was shown, because such wrong and negligence was the sole ground of recovery set out in his declaration; that under a charge of intentional wrong and gross negligence there could be no recovery for actual damages, even though negligence had been proven. An allegation of gross negligence includes negligence. The greater includes the less. Both are negligence. They only differ in degree. In Silver v." Kent, 60 Miss. 124, it was held, where the declaration charged that the injury complained of was done intentionally, and through gross- negligence and a reckless disregard of plaintiff’s rights, a recovery could be had for compensatory damages. Under the declaration and the evidence in this case, the appellant had the right to have submitted to the jury in addition to the question of punitive damages, the question of compensatory damages; and in determining the latter the jury should have been instructed to take into consideration whatever the evidence showed appellant incurred as necessary expenses, including medical bills and loss of time, and, in addition, any physical and mental suffering shown by the evidence to have resulted from the injury. It follows that the court erred in giving instructions numbered 1, 3, 4 and 5 for appellee, and in refusing instruction No. 4 for the appellant.
By instruction No. 8, for the appellee, the jury were informed that, if the evidence showed the injury com
. By instruction No. 5, refused by the court, the appellant sought to avail himself of section 1985, Code of 1906, which provides that “proof of injury inflicted by the running of the locomotives or cars” shall make out a prima facie case of negligence. The appellant was clearly entitled to the benefit of this statute. He was injured by the running of appellee’s locomotive. There is no dispute about that. The statute applies, regardless of whether the facts attending the injury are in evidence or not. In Y. & M. V. Railroad Company v. Phillips, 64 Miss. 693, 2 South. 537, the court said: “The statute was •enacted to meet cases where the manner of the injury inflicted is not known to others than the employes of the railroad company; but it is equally applicable where a cloud of witnesses see the injury. It Is not needed there, it is true; but it is not error to invoke it, for the law affects the railroad company with liability, prima facie, in every case of injury inflicted by the running of its locomotives or cars. If the evidence showing the injury inflicted rebuts the presumption,' well; but, if it does not ,the presumption created by law from the fact of the injury in this mode is to stand and control.” It was, therefore, error to refuse this instruction.
Reversed and remanded.