75 So. 554 | Miss. | 1917
Lead Opinion
delivered the opinion of the court.
Appellee as the plaintiff in the court below instituted this action against appellant to recover damages for personal injuries sustained by him in a collision at Tupelo, July, 1914. Mr. Campbell was one of the regular engineers of the Frisco Railroad Company, and as such engineer had an earning capacity of at least two thousand four hundred dollars per annum. At the crossing in Tupelo, Miss., where plaintiff was injured, the Mobile & Ohio runs approximately north and south and the Frisco Railroad approximately east and west. Plaintiff was in charge of his Frisco engine doing switching on the Frisco Track at the point where it is intersected at right angles by the main line of the Mobile \& Ohio. The evidence for the plaintiff, and indeed the overwhelming weight of testimony, shows that Mr. Campbell at. the time of the collision was in possession of the crossing, and had been switching forward and backward at the crossing for some fifteen or twenty minutes prior to the collision. While thus upon the crossing the tender of Campbell’s engine was violently struck by several loose runaway cars of the Mobile & Ohio Railroad Company moving northward over the Mobile & Ohio tracks. The impact was so violent that Campbell’s engine was hurled some distance northward along the Mobile & Ohio tracks, and a bad wreck was left as a testimonial of some one’s negligence. The plaintiff in his declaration averred that he was operating his engine on the St. Louis & San Francisco Railroad crossing in accordance with all the rules and regulations of his company, and that he was using due care and caution; that in doing his switching he had keen occupying that part of the track which crosses the Mobile & Ohio Railroad in the town of Tupelo for some
The testimony shows that the acting engineer was a fireman, and nothing more than a fireman, and had never been licensed to operate an engine. The Mobile & Ohio engine, with the twelve freight cars, proceeded to move from one of the switch tracks of the Mobile & Ohio on to the main line, and proceeded north towards the crossing, and in doing so according to the plaintiff’s testimony, and according to the overwhelming testimony for both plaintiff and defendant, moved at a rapid rate of
*819 “Backing- into or along a Passenger Depot. — It shall be unlawful to back a train of cars, or part of a train, or an ■engine into or along a passenger depot at a greater rate of speed than three miles an hour; and every such train, par-t. of a train, or engine backing into or along a passenger depot, and within fifty feet thereof, shall, for at least three hundred • feet before it reaches or comes ■opposite such depot, be preceded by a servant of the railroad company on foot, not exceeding forty nor under twenty feet in advance, to give warning. For every injury inflicted by a railroad company while violating this section, the party injured may recover full damages without regard to mere contributory negligence.” Section 4046 of the Cods is as follows:
“Bunning, Flying, Walking, or Kicking Switches.— It shall not be lawful for any railroad company or other person to switch a railroad car in the manner commonly known as a ‘flying,’ ‘running,’ ‘walking’ or ‘kicking’ switch, within the limits of a municipality; and, in case of injury resulting to any person or property from switching in violation of this section, the railroad company shall be liable in damages, without regard to mere contributory negligence of the party injured.”
Section 1353 reads as follows:
“ (Eailroads); Locomotives to be Stopped in Certain Cases, etc. — If any person shall run, or cause to be run, a locomotive propelled by steam upon or across the track of any other railroad company without first coming to a full stop just before it comes upon or across such track, he shall, on conviction, be fined not less than twenty-five dollars nor more than one thousand dollars, or imprisoned in the county jail not more than one year, or both; and if, by reason of his coming upon or across such track, some person shall be killed or injured, he shall, upon conviction, be imprisoned in the penitentiary not more than fifteen years. ’’
The jury returned a verdict for the plaintiff and assessed damages at ten thousand dollars. It is claimed
“The court instructs the jury for the plaintiff, Camp-' bell, that it is unlawful for a railroad train to be operated within the corporate limits of a city at a greater rate of speed than six miles an hour, and that it is unlawful for a train, or a part of a train, to back into or alongside a passenger depot in an incorporated city at a greater rate of speed than three miles an hour and that within two hundred feet of the said passenger depot a servant must precede the cut of cars not less than twenty feet, or more than forty feet; and that it is unlawful for a train, or part of a train, to go upon the crossing of another railroad track with its own, without coming to a full stop ,just before going on the crossing, and that if the jury are satisfied by a preponderance of the evidence that all or any of these laws were violated in the operation of the Mobile & Ohio train on the day of this accident, and that plaintiff received injuries on account of the said negligence of the said railroad company, then it is your duty, under the law, to return a verdict for him for full damages.”
It is contended on behalf of the appellant that this instruction authorizes a recovery for full damages without regard to contributory negligence. Counsel for appellee meet this criticism by the contention that under the express provisions of sections 4046 and 4047 plaintiff was entitled to recover “full damages without regard to mere contributory negligence;” and in any case the defense of contributory negligence is an affirmative defense, and that the issue of contributory negligence was fairly submitted to the jury under proper instructions. Much is said about the application of section 135’3 of the Code, which does not contain a provision to find for full damages without regard to mere contributory negligence. This statute provides that if any person shall run a locomotive propelled by steam upon or across the
In our judgment it was not the purpose of the legislature in enacting chapter 135, Laws of 1910, to repeal, alter, or modify either of these Code sections. The act of 1910 does not expressly refer to these Code sections, and all three statutes can well stand and' operate together. Prior to the enactment of chapter 135, Laws of 1910, where the plaintiff was guilty of contributory negligence he could not recover; the contributory negligence was a bar to his right of recovery. The purpose of the new statute is simply to afford a right of recovery in those cases where plaintiff’s negligence had operated' as a complete bar, and not to give any one sustaining personal injuries a right to sue in all cases where the defendant’s neligence contributed in whole or in part to the injuries complained of. It is contended that instruction Ño. 1 authorized the jury to award the plaintiff “full damages” if the jury are satisfied that all or any one of the statutes referred to was violated; that under section 1353 full damages without regard to plaintiff’s negligence could not be allowed, and the embracing of this statute renders the instruction fatally defective.
In determining liability in this case, and especially in considering the correctness of this instruction, it is well to remember that the prima-facie statute applied against the appellant, and the burden of proof was upon it to
More than this, if we accept at par the testimony offered on behalf of the plaintiff, as the jury evidently did, there is evidence warranting the jury in believing that a “flying” or “kicking” switch was being made. Mr. Tom Hall, the general foreman of the mechanical
“They were making what you know as a ‘flying’ switch, was it? A. Yes, sir.”
Mr. Walter Wood, who had been living in Tupelo twelve years and who had been doing regular switching for the Frisco Railroad six years, was an eyewitness to the collision, and in answer to a question as to how fast the cars were coming when they struck the tank of Camp-hell’s engine, responded: “I judge ten or twelve miles.”
Mr. R. M. Whitlock, a citizen of Tupelo for nine years in charge of a finishing machine at the Tupelo Cotton Mill, saw the approaching cars and stated: “They looked like they might be making twelve or fourteen miles an hour. ’ ’
Mr. Campbell testified that in doing some switching or placing some ears down the house track, his engine had been cut off from the cars he was placing, that the whole length of his tender was over the Mobile & Ohio track at the crossing, and while so situated the Mobile & Ohio cars came up the line “cut from the engine.” The-following appears from his testimony:
“Q. They (the cars) were not connected with the engine? A. No, sir. Q. doing to make what you call a ‘flying’ switch? A. ‘Flying’ switch. Q. doing at eighteen or twenty miles an hour ? A. Yes, sir. . . . Q. What did you do? A. The conductor gave me the alarm. Q. What did he say to you? A. He hollered to me to get off the engine, and the time he hollered, he*824 called my name and told me, lie says, ‘For God’s sake, leave that engine! ’ and they were so close I dasent go out the gangway. I knew they would hit the tank, and I went back and jumped out the side window. . . . Q. "When you went out, what happened to you? A. I fell on the concrete walk on my left side. ’ ’
We quote the testimony to show that there was sufficient evidence to warrant the jury in finding that the Mobile & Ohio employees were in fact making a kicking switch, and that the cars never had in fact been properly coupled together. While there is some evidence, especially some statements made by Mr. Underwood, that Mr. Campbell was himself guilty of negligence, the showing of the defendant in this record is not very satisfactory. Mr. P. H. Mitchel, employed as a ear inspector of the Mobile & Ohio Railroad Company, was an eyewitness to the collision, being some one hundred yards north of the crossing. He testifies that he heard Mr. Underwood on the crossing “hollering for Mr. Campbell to jump.” He was then asked:
“Q. Did you mean to convey the idea that the trains were about to strike when you first saw it? A. He (Underwood) had run across the crossing, and was hollering for Mr. Campbell to jump out of the engine. . . . Q. When you first saw the crossing was it vacant, or Mr. Campbell’s engine on it? A. Mr. Campbell’s engine was standing on it. Q. When you first saw it, could you see the Mobile & Ohio freight train coming from the south? A. Yes, sir; when he was hollering. Q. What was Mr. Underwood saying? A. He was hollering for Mr. Campbell to jump. Q. What did he have in his hand, if anything? A. He' had a red flag. Q. He ran around on the north side of Mr. Campbell’s engine hollering for Mr. Campbell to jump? A. yes, sir.”
And on cross-examination:
“Q. When you first saw down there you saw the crossing was blocked by Mr. Campbell’s tank? A. Yes,*825 sir. Q. The next thing you saw was, Mr. Underwood came around the tender? A. Came around the tender. Q. You saw that plainly yourself? A. He came around. .• . . Q. To the end of the tank? A. Hollering for him to jump.”
Thus saith the defendant’s own witness and the defendant’s own employee. The testimony out of the mouth of the defendant’s witness demonstrates that Campbell had possession of the crossing; that he was not anticipating danger; that Mr. Underwood, on account of the presence of Campbell’s engine, had to run around the end of the tender to get on the right hand or the engineer’s side of the engine to make sure of his warning. He was loudly and' excitedly calling to Campbell to jump. If Campbell had been negligently approaching the crossing with his engine, then manifestly at the time of the collision Campbell’s engine would not have been stationary on the crossing, and that, too, for such length of time as compelled Underwood to run from the south to the north side of this engine in pleading to Campbell to jump.
Keeping in mind, then, the facts of the case, there is no real cause to complain at instruction No. 1 because it authorizes the jury to return a verdict for “full damages.” The word “full” is here more nearly synonymous with the word “all,” and simply means such damages as the jury think the plaintiff is warranted in receiving.
There can be no question but that the jury was fully warranted in believing that the defendant violated both sections 4046 and 4047 of the Code, and if it violated either, plaintiff was entitled to recover “without regard to mere contributory negligence. ’ ’
It only remains to determine then whether the instruction should be condemned because it embraces the hypothesis contemplated by section 1353 of the Code. We are of opinion that it was not necessary for the plaintiff to invoke this statute at all, and that the invoking of' the
But regardless of the statute, the Mobile <fe Ohio train would have been required to come to this same “full stop” before plunging into Mr. Campbell’s engine. The duty imposed by the statute under the facts in this case is also imposed by the general law of negligence. The plaintiff was not required to invoke section 3 353, and any instruction which imposed‘upon the defendant the duty in this case to come to a full stop was a proper instruction, announcing the'substantive law of the case regardless of what the statute says, and regardless of whether the statute has any application at all, and regardless of whether the defendant had, under the facts in this case, a right to plead contributory negligence. ' In this connection we observe that, even though the plaintiff, Campbell, had proceeded upon the Frisco crossing without exercising due care, if he had possession of the crossing before the Mobile <fe Ohio train got to it, then it would follow that he who was first in time was first in right. Although Campbell might have taken possession of the crossing wrongfully, this would not authorize the employees of the Mobile <fe Ohio train to run over Mm or knock him off. This is not a case where Mr. Campbell ran into a Mobile <fe Ohio train in violation of a flag warning, but the evidence indisputably shows that Conductor Underwood was standing upon the crossing, not for the purpose of flagging trains generally, but primarily for the purpose of catching his own train as it proceeded up the main line of the Mobile <fe Ohio tracks. • The evidence indisputably shows, further, that he attempted to flag down his own train, and would have succeeded in doing so had
As applied to the facts of the case, instruction No. 1 properly defined the duty imposed upon the defendant, and it only remains to determine whether the words “full damages” nullified the defendant’s plea of contributory negligence. Conceding for the purpose of argument that the plaintiff was guilty of contributory negligence, even then the jury in deliberating’ upon a verdict and in arriving at the amount of that verdict would first be compelled to determine the full extent of plaintiff’s injuries in accordance with the directions of the instruction complained of. The purpose of our comparative negligence statute is to authorize a negligent plaintiff to recover, but to recover only an amount diminished in proportion to the negligence of the respective parties to the litigation. The very word “diminish” presupposes some fixed amount to be cut down or subtracted from. A jury, in ascertaining what amount they will award the plaintiff, would naturally direct their minds to the ex-
“Under the law in this state regarding instructions, when it is desired that the jury be told of the statutory law that contributory negligence will operate to diminish damages, the party so desiring that information on the subject be given to the jury must present to the trial judge proper instructions in writing containing such information.”
The present case falls within the principles of the Nix Case just referred to. In the case note on the federal Employers Liability Act in volume 8 of Negligence Compenshtion Cases Annotated, on page 24 it is said:
*829 ‘ ‘ The burden of .proving the defense of assumption of risk or contributory negligence is upon the defendant. Seaboard Air Line R. Co. v. Moore, 228 U. S. 433, 33 Sup. Ct. 580, 57 L. Ed. 907.”
The language of the federal act in reference to comparative negligence is almost identical with the language ■of our statute.
The plaintiff in this case had the absolute right to recover regardless of contributory negligence. The defense of contributory negligence is always an affirmative defense, and the burden of proof as to it is upon the defendant. This is the rule in Mississippi and the rule ■enforced in federal courts. By the express provision of .our statute all negligence is now a question for the jury.
It is next contended that instruction No. 2 misled the jury as to the measure of damages. This instruction reads:
“The court instructs the jury for the plaintiff that the. measure of damage, if the jury believe that the plaintiff has been injured by the negligence of - the railroad company, is the amount that will compensate him for his injuries, and in computing this amount it is proper for the jury to take into consideration his actual damage, including mental and physical pain, loss of time, expense, and doctor’s bill, drugs, etc.; and, if the jury believe by a preponderance of the’ evidence that the plaintiff’s injuries received by the negligence of the defendant are of permanent nature, then they may compute his future earning capacity by his expectancy, multiplied by his earning capacity, if the jury are satisfied from the evidence that he had an expectancy and earning capacity. ’ ’
A portion of this instruction is singled, out without giving proper weight to all the language employed. The instruction does state that if the jury believe that the plaintiff has been injured by the negligence of the railroad company “that the measure of damages, is the
Complaint is made that there is no qualification to the effect that the permanent injury received by the plaintiff resulted in total disability. The uncontradicted proof does show that the plaintiff was an experienced engineer, capable of earning and actually received no less than two thousand four hundred dollars per annum; that he was injured, and severely injured; that at the time of the trial he was unable to hold down the job of engineer, and, according to his testimony, would never be able to do so. The argument, therefore, that the instruction does not take into account the fact that Mr. Campbell might earn a little money in various ways is highly technical Avhen applied to the facts reflected by this record. If an expert engineer has been rendered totally incapacitated to do service as an engineer, then certainly he has been denied the privilege of pursuing
One witness for the defendant testified that after the collision Mr. Campbell operated his train from Tupelo to Amory, and that on the trip to Amory there was an accident or wreck which caused the plaintiff, Campbell, to jump from his engine; that in this slight accident near Amory in which, according to the witness, the engine was derailed, the plaintiff was there injured, instead of being injured at Tupelo. -There was evidence for the plaintiff which contradicted and impeached this testimony.
There is also an intimation of counsel that this is a falie case, but the defense of the railroad company' in the trial of the case below does not appear to have been based upon this theory. If the evidence indeed showed that this was" a fake case, then it should be reversed on the facts. The issue of fact’has been settled by the verdict of the jury, and their findings should certainly not be disturbed, unless there is some reversible error in the application of the law. It is altogether plausible that the plaintiff was severely injured by falling broadside upon the brick or concrete pavement as. a result of his excited effort to jump from his engine, and it is also plausible that his injuries did not fully develop until a day or two afterwards. The fact of his injury is supported. by the testimony of his physician.
As above stated, there was no duty resting upon the plaintiff to negative by his instructions the affirmative defense of contributory negligence. Instruction No. 1 for the plaintiff and instruction No. 8 for the defendant, when read together, properly announce the law. There was.no conflict one with the other.
There is no merit in any of the other assignments of error or contention raised by counsel for appellant.
If a plaintiff is required himself to ask charges from the court submitting the defense of contributory negli
This cause has been twice argued, has received our most careful consideration, and we see no cause to disturb the jury’s findings. ■
Affirmed.
Dissenting Opinion
(dissenting). I cannot accept the views of the majority in this case either as to the law or as to its statement of the facts. I think the facts are stated -entirely- too strongly for the appellee, and that, where the court, differs as to the law applicable, it is highly important that the court agree as- to its facts, and that the contentions of each party be fairly set forth in the opinion. If the statement of the facts in the majority opinion was for the purpose of showing there was sufficient evidence to go to the jury, and if there was a disagreement among the members of the court as to whether the evidence was sufficient to go to the jury, the statement, of facts would be unobjectionable. However, all members of the court agree that the case on the facts was one proper to go to the jury, and the difference grows out of the giving of certain instructions.
I shall not undertake to set forth all the facts supporting the appellant’s theory of the case, as I am in no sense a partisan for either party. I deem it neeessary, Tiowever, to call attention to certain facts for the purpose of demonstrating the correctness of my view that there was error in the giving of instructions hereafter to be commented upon. It was the theory of the appellant, and its testimony sustains its theory, if accepted as true, that the appellant was entitled to the crossing at the time of the injury, and that it had a man with a flag on the crossing for the purpose of keeping any trains of the St. Louis & San Francisco from coming upon the cross
It was further in testimony and testified to by numbers of witnesses that the appellee was not injured at all, but that he ran down the gangway, being the regular method of exit from the engine,, and landed on the sidewalk on his feet, and that he did not fall at all, and that he stated immediately after the accident that he was not hurt, and he himself admits that shortly after •the accident he stated that he was not seriously hurt.
It is further testified to by a defendant witness that Campbell carried his train on to Amory on the day of
It was seriously argued by the appellant that there was not sufficient evidence to support the verdict, and that the overwhelming weight of evidence was against Campbell. We recognize that a jury who can see the witnesses, know their candor, know something of their demeanor and character, are better able to settle questions of fact than judges of this court, who only get the evidence from the printed page. If I were called upon to decide upon what appears in printed record, free
It is idle to say that full damages does not mean anything. One of Webster’s definitions is ‘‘withoutoabatement or diminution,” which is the proper one to use in a sentence like the one in the statute. The legislature must be presumed to be familiar with the meaning of ordinary English language, and when they singled out a particular location and situation and authorized the recovery of full damages under that situation, when they do not authorize it in the other situations involved in this instruction, is to carry conviction that the word “full” was used advisedly in section 4047, and this presumption is greatly strengthened when we consider the evident purpose of section 4047. The majority opinion practically writes out of the law the words “full damages” when used in an instruction, and gives effect to it when used in a statute. I think the bar will have some difficulty in determining exactly what that section of the Code means when read in connection with the majority opinion. I is inconceivable how a court can reconcile instruction No. 1 with the law, and how theji can reach a conclusion that it is harmless error on the facts of this record. The argument in the majority opinion that instruction No. 1 was modified or affected by instruction No. 8, to my mind, is without merit. The two instructions are absolutely inconsistent and in conflict and present two direct and contrary rules for the guidance of the jury.
Instruction No. 2 for the plaintiff tells the jury that:
“The measure of damages, if the jury believe the plaintiff had been injured by the negligence of the railroad company, is the amount that would compensate him*838 for his injuries, and that in computing this amount it is proper for the jury to take into consideration his actual damages, including mental and physical pain, loss of time, expense and doctor’s bill, drugs, etc.; and, if the jury believe by a preponderance of the evidence that the plaintiff’s injuries received by the negligence of the defendant are of a permanent nature, then they may compute his future earning capacity by his expectancy multiplied by his earning capacity, if the jury are satisfied from the evidence that he had an expectancy and an earning capacity.”
This instruction does not state the law correctly, and is radically misleading. In the first place, it tells the jury that the measure of damages is the amount that will compensate him for the injuries, ignoring any reduction on account of his own negligence, if the jury believe he was negligent, but tells the jury that if the defendant was negligent, they will give the plaintiff what will compensate him for his injuries, and that if they believe his injuries are permanent, this measure is the earning capacity multiplied by the expectancy. It wholly ignores any reduction for contributory negligence, if the plaintiff was guilty of contributory negligence in going upon the crossing, which the defendant’s evidence tended to prove. It is absolutely vicious in this: That it tells the jury that if plaintiff received injuries and such injuries are permanent, then they may compute his future earning capacity by his expectancy multiplied by his earning capacity, wholly ignoring the question as to whether the disability from the injuries is total disability. It is claimed that the plaintiff sprained his ankle. The jury may have believed that this was a permanent injury to the ankle, in which event they would proceed under this instruction to allow his earning capacity multiplied by his expectancy. There is no pretense in the evidence that the plaintiff, after the injury had no capacity to earn something in the way of a livelihood; even on his own testimony and that of his physician this deduction
Again, the instruction is faulty in that it does not contain a hypothesis that the present value of his expectancy is to be allowed instead of the total amount which would result from calculating the earning capacity by the expectancy. It is manifest that if the plaintiff was not totally disabled, he was not entitled to his full expectancy, even at its cash value, let alone its value multiplying the expectancy by the yearly earning capacity, as the instruction states it. .
In considering this instruction, we are bound to consider it in the light of the evidence in the record, and, taking the evidence as a whole, it does not justify an assumption of permanent injury resulting in total disability, and to say that this instruction is not erroneous and misleading is simply to trifle with justice. The allowance was for ten thousand dollars, a very substantal sum for the character of injury shown even on the plaintiff’s own testimony. This instruction cannot be reconciled or modified by any instruction given for the defendant, or for either party to the suit for that matter, in the record. If we assume thal the jury found that the plaintiff was negligent in going upon the crossing over the flag of the defendant, and that the jury undertook to diminish his full damages estimated by multiplying his expectancy by his earning capacity and deducting therefrom the amount that his own negligence contributed to the injury, the finding of the jury may well have warranted the belief they allowed the full expectancy under this erroneous instruction. It is impossible to reconcile the instructions in this case, applied to the facts and the verdict rendered by the jury, with any idea that substantial justice was done. The instructions were glaringly misleading. The defendant’s rights were wholly ignored in the giving of these instructions. Every person, great or small, rich or poor, individual or corporation, ought to be able to secure justice in the courts of the
There are other errors in the record, hut if the two instructions commented upon were eliminated, we would not consider these errors reversible; but when we take the whole record and look at this trial as a completed performance, the conviction is overwhelming that there has been a miscarriage of justice and a gross wrong to the defendant in this trial.
For the foregoing reasons I am of the opinion that the cause should be reversed and remanded.
As the cause is affirmed and there is no further trial to be had, I do not comment on the particulars of other features of the record.