11 So. 505 | Miss. | 1906
delivered the opinion of the court.
A patient and careful examination of the entire testimony in this record makes it perfectly obvious that the proximate cause of the injury was the split switch and the defective trucks and flange. The rails did not fit. They had to be knocked together. After they were locked they still did not fit. The trucks were out of order, and the flange of the wheel worn. The derailment was caused by the improper condition of the track at the switch point and the defective trucks and flange. It was the undelegable duty of the master to have the track in safe condition. A careful and repeated examination of the instructions on both sides and of the declaration, taken in connection with this testimony, makes it very clear that the plaintiff proceeded upon the theory of the negligence of the company itself, and not the negligence of any fellow servant. The evidence makes it plain that the adjustment of the switch referred to in the declaration was not an adjustment by a fellow servant; but the adjustment
Besides, the other instructions, taken as a whole, show that no liability was sought to be imposed by reason of the negligence of any fellow servant in any respect, That instructions, taken together, properly announce the rule that the defendant 'must provide safe ways and appliances. .There is no error in this respect. The seventh, eighth, twelfth and seventeenth instructions for defendant, as also the tenth, eleventh and nineteenth, cover this ground fully-. The criticism that in some of the instructions for the'plaintiff the negligence counted on is not the negligence alleged in the declaration is hypercritical. The tenth instruction for the defendant expressly charges the jury that the injury must "have resulted from the alleged negligence of the defendant.” No other negligence than the negligence alleged in the declaration — to wit, the negligence of the company itself— could have been referred to in the instructions for the plaintiff; but this instruction for the defendant expressly advises them of the fact, and the eleventh instruction for the defendant actually enumerates the specific grounds of negligence set out in the declaration. Instructions cannot be ..objected to separately with any justice. The instructions must be taken as a whole, as one body, and announce, not the law for the plaintiff or the defendant, hut the law of the case, and, so taken, if they reasonably advise the jury of the true principles applicable to the case made by the facts, that is all that is required as a guide for the twelve plain, practical men who sit in the jury box. Any other view would sacrifice substantial justice in a very large percentage of the cases appealed to this court.
The fourth instruction for the defendant was properly refused, because of a special reference to the testimony of the witness, Lee, and, besides, had been .abundantly covered by instructions 7, 12, 15 and 18 for the defendant. The fifth instruction was properly refused, because there is not a shred of
All tbe modifications in instructions Nos. 6,10, 11,15,17 and 19, asked by tbe defendant, were proper as shown by tbe testimony in tbe case. Tbe only serious comment needed to be made as to modifications, is as regards tbe modification of tbe eleventh instruction for tbe defendant by-the court, which modification consisted in adding these words: “(4) Tbat tbe switch where tbe derailment occurred wa.s not properly adjusted at tbe time of tbe accident, and tbat tbe failure to do so was tbe proximate cause of tbe injury to plaintiff.” Of course, this instruction and all tbe instructions were given by tbe circuit judge looking back over tbe case made by tbe evidence, and it was just as clear to him then, as it is to us now, tbat tbe adjustment of tbe switch made out by tbe evidence was its failure to fit up tight and close as it should have done, and not tbe handling of tbe switch by an employe. The instruction as asked was clearly erroneous, because it omitted absolutely tbe only real ground on which tbe plaintiff proceeded. If tbe defendant did not choose to use tbe instruction as modified, it should not have read tbe same to tbe jury, but should have stood upon tbe error in tbe modification, if error there was therein. This court said, in Railroad Company Suddoth, 70 Miss., 265 (12 South. Rep., 205): “One who has asked an erroneous instruction cannot assign for error its modification; for, if not content with it as modified, be should have declined to read it to tbe jury.” If tbe instruction bad been correct as originally asked, then a modification might have been insisted on as error; but it was erroneous as originally asked, and tbe modification made it correct as to tbe main point
This brings us to the only other contentions we deem it necessary to notice. First, as to the admission of testimony regarding the plaintiff’s prospects of promotion. This testimony is as follows : “Q. State whether or not you had any promise of promotion by any officer of the company. (Objected to; overruled;, exception.) A. Nothing, only Mr. Bell, when I had the typhoid fever and got well and went to my boarding house — he was boarding at the same place — he says: T wish you had been well; I would have had you running an engine since you have been sick.’ Q. Did he ever say anything to you afterwards about that? A. Tes, sir; that he had put in another man. He said Í would have to wait awhile. Q. Tou would have to wait awhile before you could get an engine ? A. Yes, sir. Q. What was your object in hiring to the railroad company as a fireman ? A. The only purpose of it was to earn a living. The only purpose was, I wanted to become a locomotive engineer.” For the plaintiff it is insisted that the question whether plaintiff had any promise of promotion by any officer of the company was competent, and that the only thing that was wrong was the answer of the witness, which was not responsive to the question. We cannot concur in this view. We think the question as to a promise was not competent, as inquiring as to a matter entirely too speculative and remote, within the rule announced by the supreme court of the United States in Richmond & Danville R. R. v. Elliott, 149 U. S., on p. 268 (13 Sup. Ct., 837; 37 L. ed., 728). It is there said: “We think there was error in the admission of this testimony.
All the other questions and answers set out above are not with respect to a promise, but along the same line of interrogation which had been previously addressed to the witness, Wainwright, subsequently to be noticed in this opinion. It seems very clear that the learned counsel who represented the appellant in the court below regarded the line of interrogation embraced in these very questions as being the same that was pursued with respect to the interrogatories and answers addressed to Wainwright, none of which was objected to. These latter interrogatories and answers of the plaintiff above set out, not-having been objected to below, cannot, of course, be objected to here. So that .the only thing which the defendant reserved below, so far as this testimony is concerned, was the single objection to the question whether plaintiff had any promise of promotion by any officer of the company, which question was. explicitly answered by the witness to the effect that no such promise had been made. The manifest difference, therefore, between the testimony in this case and the testimony in the case of Richmond & Danville R. R.
But it is insisted in the next place that there was evidence of the poverty of the plaintiff which ought not to have been permitted to goto the jury. In the cross-examination, the plaintiff was asked whether he did not work. ' He stated that he 'did not, but that a man wanted to go around, if he could not work. He was then asked: “What particular business made you go around so early?” and he answered: “I was in the house so long I wanted to get about. I was here so long I wanted to get to my father-in-law’s, in Scott county.” The object of this testimony was to show, if possible, what work or business, if any, the plaintiff had. On redirect examination, he was asked: “You stated in your cross-examination you went away from here about the 22d of April to your father-in-law’s. State to the court and jury why you left here and went to your father-in-law’s.” He answered, after the objection was overruled: “I left here because I had no business to make a living at, and didn’t have the means to stay here on. I have been living with my father-in-law since that time.” We think the question as to why he went to his father-in-law’s house was a perfectly competent question; it was simply a reexamination on the identical line of interrogation along which, as above shown, plaintiff had been examined. If the answer can be properly held to show with the clearness required to make it objectionable that he was a poor man, then it
Lastly, it is insisted with great earnestness that the verdict is grossly excessive. The testimony shows that the plaintiff was a young man in vigorous health, working as a fireman; that he was twenty-four years old, married, and earning about forty dollars a month before the injury; that since the injury he had not earned four dollars; that he had tried a job of sawing with a cross-cut saw, but, having to stand on one foot, could not stand it, and had to give it up; that the injury was permanent, Dr. Ross, the railroad physician, so testifying; that one leg would always be shorter than the other, and crooked; that it took five minutes to get his head and neck from the timbers clinching them, and nearly choking him to death, and between two and three hours to get the timber away so as to free his leg and foot, which had been crushed; when released he was unconscious part of the time. It was the province of the jury, and the jury alone,
It will be seen from this instruction that the jury were expressly told not to allow anything as a punishment to the defendant, and, further, not to allow anything but reasonable compensation in dollars and cents, to be arrived at and made up from the testimony in the case and from no other source. They were particularly and explicitly held to the strictest possible rule in favor of the defendant company on this subject. Their verdict must be accepted as responsive to this instruction. This court has no scale delicate enough to weigh physical and mental anguish. At best it is an extremely difficult task. The law has committed this delicate task to the unbiased judgment of the twelve plain, practical, every-day men who compose the jury,
Affirmed.