Yazoo & M.V.R. Co. v. Wallace

• Decision Date: 10 February 1908
• Docket Number: 12,882
• Citation: 91 Miss. 492,45 So. 857
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. J. W. WALLACE
• Court: Mississippi Supreme Court

45 So. 857

91 Miss. 492

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. J. W. WALLACE

No. 12,882

Supreme Court of Mississippi

February 10, 1908

FROM the circuit court of Yazoo county, HON. DAVID M. MILLER Judge.

Wallace appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor, the defendant appealed to the supreme court.

On a former appeal a judgment in favor of plaintiff was reversed and the cause remanded for new trial. The case is reported, Yazoo, etc., R. R. Co. v. Wallace, 90 Miss 609. On the second trial in the court below plaintiff amended his declaration changing his demand from $ 50,000 to $ 100,000.

The plaintiff, while in the discharge of his duties as a brakeman of the defendant railroad company, was riding upon the pilot of a work train of the defendant, the engine in the temporary absence of the engineer being operated by the fireman. The engine and train approached a recently repaired railroad crossing when plaintiff, in order to give a signal to the fireman in charge of the train, undertook to cross from one side of the pilot to the other, by stepping upon a small and narrow stepping board on its side. While standing on this stepping board, the engine reached the crossing, and, as plaintiff claimed, because the crossing had been improperly repaired, his foot was caught between the pilot and the road bed, he was thrown under the engine and lost both legs. There was no evidence of wilful wrong on the part of any of defendant's agents or employes, nor did the declaration claim punitive damages.

The jury found for the plaintiff, awarding damages in the sum of $ 50,000, the same sum awarded on the first trial of the cause.

The defendant moved for a new trial on the ground, among others that the verdict was excessive, but the circuit court overruled the motion.

Judgment affirmed and cause remanded.

Mayes & Longstreet, Charles N. Burch, and Clarence L. Sivley, for appellant.

From the whole record it is manifest that the verdict of the jury was clearly wrong, for there was a palpable failure of proof to warrant it, notwithstanding the evidence adduced. Railway Co. v. Contrell, 70 Miss. 321; McAlexander v. Puryear, 48 Miss. 420; Pfeifer v. Chamberlain, 52 Miss. 89; Harris v. State, 71 Miss. 416.

Accepting Wallace's statement in respect to the manner in which his injury was inflicted as true, so far as he has given any evidence on that point, it does not make out a case, and a peremptory instruction, as asked, should have been given for the defense. His testimony shows that he was guilty of such contributory negligence as should preclude recovery.

A careful reading of the whole record will show two important facts: 1. No one undertakes to tell how the plaintiff was injured except himself. 2. He, himself, virtually admits that he does not know what the effective cause was; he only conjectures, and his conjecture is that it was "something" on the crossing. Not only is the presumption of negligence raised by Code 1892, § 1808, inapplicable to the case of an employe, but it is also the law that "mere conjecture will not support a judgment in any case, but the causa causans must be proved." Owens v. Railroad Co., 77 Miss. 142.

Independent of any statutory presumptions (which, we submit, do not exist in this case) two elements are essential to a recovery by plaintiff: First, there must be shown negligence on the part of the defendant, which negligence was the proximate cause of the injury; secondly, the evidence must not disclose any contributory negilgence on the part of the plaintiff.

It is true, that there is a good deal of testimony about a low joint, and that the pilot sagged so that it was not elevated above the surface of the rails of the track quite as high as usual; and it is true, that there is a good deal of testimony about the surface of the crossing being so high that it was raised flush with the top of the rails. But even if the pilot sagged, and even if there were a low joint and a raised surface of track, it is impossible to see how the plaintiff's foot should have been caught under the standing board of the pilot. A peremptory instruction for the railroad company should have been given, because of the plaintiff's manifestly gross negligence.

The verdict was clearly excessive. The plaintiff was earning from $ 75 to $ 90 per month; that is, from $ 900 to $ 1080 per annum, assuming that he lost no time. The fair average between these two amounts is $ 990. Plaintiff's expectancy was shown to be thirty-eight years. The annuity tables, on the basis of six per cent, the legal rate in Mississippi, show that a payment of $ 14.84 would be the amount necessary to purchase an annuity of $ 1.00 per year for thirty-eight years. Hence to purchase an annuity of $ 990, it is only necessary to multiply $ 990 by $ 14.84, which gives a product of approximately $ 14,695. Yet the jury gave a verdict of $ 50,000.

The jury probably assumed that the plaintiff would be...