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

• Citation: 67 So. 963,109 Miss. 143
• Decision Date: 05 April 1915
• Docket Number: 16861
• Parties: YAZOO & M.V.R. CO. v. MESSINA
• Court: United States State Supreme Court of Mississippi

67 So. 963

109 Miss. 143

YAZOO & M.V.R. CO. v. MESSINA

No. 16861

Supreme Court of Mississippi

April 5, 1915

APPEAL from the circuit court of Holmes county. HON. MONROE MCCLURG Judge.

Suit by V. P. Messina against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

R. V Fletcher and Mayes & Mayes, for appellant.

Barbour & Henry, Burch & Stricker and C. D. Potter, for appellee.

OPINION

COOK, J.

Mr Messina instituted suit against the railroad company for personal injuries, and recovered a judgment for ten thousand dollars. The defendant railroad company appeals.

The evidence for plaintiff discloses that plaintiff had been employed by the railroad company as a switchman; that the day before the injury he had decided to lay off and go to Memphis, and in pursuance of this purpose he left Jackson on a freight train to go to Canton; he traveled deadhead, with the permission of the train crew, to Canton. About midnight of the next day he and several companions secured the permission of the engineer of the north-bound passenger train to ride on the tender of the locomotive from Canton to Memphis. The engineer denied this, and said he had no knowledge that the party was on the tender. Before the train left Canton the engineer was given a telegram from the train dispatcher, which read: "More or less rain all over district to-night." The plaintiff, Messina, and his companions boarded the locomotive as it pulled out of Canton, and rode to Durant on the tender. When the train reached Durant the engineer received another telegram from the train dispatcher, reading:

"No. 5 reports water high between Beatty and Sawyer; have had very hard rains in there past three hours; water over the track but no damage reported, at Sawyer."

The train then proceeded on its way. There was no scheduled stop between Durant and Winona. After the train passed Beatty, it was then in the storm zone. The engineer testified that he then reduced his speed from fifty miles per hour to thirty-five miles per hour. At the place where the derailment occurred, and for some distance south thereof, a creek paralleled the railroad right of way, crossing the track under a trestle about thirty yards wide. About two-hundred and fifty yards south of this trestle there was a curve in the track, and the trestle could not be seen from a north-bound train until the curve was rounded. The locomotive was running thirty-five miles per hour according to the engineer's testimony, and fifty to sixty miles according to plaintiff's evidence, when the water over the track came in view of the engineer, after he had passed the curve. The engineer said that he could not have stopped his train in less than one-hundred and fifty yards, meaning, perhaps, that if the train had remained on the track, it would not have been possible to have stopped the train in less than one-hundred and fifty yards. When the danger was discovered the emergency brakes were applied; the engine ran one-hundred yards, leaving the track in the meantime, and finally "laid down," with the machinery still running. Three of the cars attached to the locomotive were derailed, plaintiff was caught between the tender and one of these cars and permanently crippled. The extent of the injuries and the consequent suffering justified a verdict for the amount rendered by the jury.

There is no material conflict in the evidence, except upon the question as to whether or not plaintiff was riding on the engine with the knowledge and consent of the engineer. This question was a question of fact, and its solution was submitted to the jury. It is conceded by counsel for plaintiff that plaintiff was a trespasser, or a mere licensee, and that the defendant owed him no duty, except to refrain from willfully and wantonly injuring him. If the engineer did not know that plaintiff was riding on the engine, it is conceded that plaintiff must lose his case. Accepting this as a correct interpretation of the law of the case, we find that the disputed question of fact was submitted to the jury.

Appellant earnestly insists that the facts as to just how and why the wreck occurred were proven, and therefore the instruction upon the prima facie statute (section 1985, Code of 1906) should not have been given. This contention, we think, is not supported by the record. If the evidence for plaintiff in regard to the speed of the train is to be taken as true, the negligence of the engineer was so flagrant that the court would have been warranted in instructing the jury peremptorily that his conduct was wanton and in reckless disregard of the consequences. If it can be said that the engineer's estimate of the speed of the train raised a question of fact for the jury's decision, we think the conflict of evidence on this point was submitted to and decided by the jury.

The instruction based upon the statute was a little too stout in some particulars, one of which is that the jury should not have been told, "if all the evidence leaves it doubtful," as to whether the defendant has not met the burden. As recently pointed out by this court in Gentry v. Gulf & Ship Island R. R. Co., 109 Miss. 66, 67 So. 849, this language places a greater burden upon the defendant than the law requires it to sustain. In order to meet the prima facie case made by the proof that the injury was inflicted by a running train, it is not necessary for the defendant to do more than to disclose the facts, and if this is done the liability of defendant depends upon the facts and not upon the statutory presumption.

The argument upon the alleged error of the trial court in refusing to give to the jury the counter instruction the defendant was entitled to receive if it had requested same. It is true that this court in the Thornhill Case, 63 So. 674, and in the Daniell Case, 66 So. 730, said that:

"When the facts and circumstances have been ascertained, they must be able to say therefrom that the defendant was guilty of negligence."

The court below would, no doubt, have so instructed the jury, if the defendant had seen fit to request such instruction. The defendant did not ask for this instruction, and cannot complain that the court did not do what the statute (section 793, Code of 1906) forbids him to do, unless requested in writing. By the uniform decisions of this court the circuit judge cannot volunteer instructions to the jury, and if he does so he has exceeded his power. The plaintiff's instruction stated his side of the case, and if the defendant had requested the counter instruction the law of the case would have been complete, except as to the defects noted in plaintiff's instruction. Inasmuch as the trial court was not asked to give the counter instruction, and inasmuch as the court was without power to volunteer same, no error can be predicated of his failure to give the instruction.

It is argued that the court did not limit the quantum of damages which plaintiff was entitled to recover, in accordance with the provisions of our concurrent negligence statute. Defendant did not ask an instruction along this line, and we think it was error of defendant, rather than the error of the court, that defendant did not get the benefit of the law.

In this case the train was a heavy passenger train, consisting of one mail and one express car, a baggage car, two day coaches, and five sleepers. The crew in charge of this train knew of the threatened danger, and when the train entered the danger zone, it seems to us that the engineer should have reduced his speed to the point where he could have brought it to a standstill in less than one hundred and fifty yards. The evidence shows that he was rounding a curve in the road, and on account of the existing weather conditions he could not see further than twenty-five yards in front of his locomotive. This, we believe, was taking chances with the human lives in his charge, that was little, if any, short of a reckless indifference to the consequences. It appears that at this point especially the loss of time, as compared with the impending danger, was of no...