Wickton v. Louisville & NR Co.

CourtUnited States District Courts. 5th Circuit. Southern District of Mississippi
Writing for the CourtHOLMES
Citation45 F.2d 615
Decision Date22 December 1930
PartiesWICKTON et al. v. LOUISVILLE & N. R. CO.

45 F.2d 615 (1930)

WICKTON et al.
v.
LOUISVILLE & N. R. CO.

District Court, S. D. Mississippi, S. D.

December 22, 1930.


Mize & Mize & Thompson and T. J. White, all of Gulfport, Miss., and W. J. Gex, of Bay St. Louis, Miss., for plaintiffs.

Smith & Johnston, of Mobile, Ala., for defendant.

HOLMES, District Judge.

Plaintiffs' intestate drove his automobile at a grade crossing in front of a fast-approaching train of defendant and was killed instantly. Alleging that the injury resulted from the failure of the railroad employees to ring the bell or blow the whistle and otherwise to use due care in operating the train, the heirs of the deceased brought this suit and obtained judgment.

The main facts surrounding the accident were disclosed by witnesses on the trial with reasonable certainty, but with some conflict as to the speed of the train and whether the statutory signals were given. The driver was alone in the car, and no one knows whether he saw the train or heard the signals, if the latter were given, but, if he had stopped and looked, before going upon the

45 F.2d 616
track, there was nothing to keep him from seeing the train. There was testimony for the plaintiffs that no signals were given and for the defendant that all were duly given. The verdict in the main might, and probably should, have turned upon this controverted issue of fact. It was the duty of the jury to give attention to the evidence and rationally to reconcile or solve the conflicting testimony. It was the constitutional right of the defendant to have them do so free from arbitrary legislative dictation

In these circumstances, at the request of the plaintiffs, the court charged the jury that, if there was such a conflict of fact in the testimony as to prevent them from being able to determine how the injury was inflicted, then they might infer negligence on the part of the defendant and render a verdict for the plaintiffs.

The instruction in exact words was proper under the Mississippi prima facie statute, as construed by the highest court of the state in its latest decisions. Columbus & G. Ry. Co. v. Lee, 149 Miss. 543, 115 So. 782; Columbus & G. Ry. Co. v. Fondren, 154 Miss. 40, 121 So. 838. This statute in full is as follows:

"1580. Injury to Persons or Property by Railroads, Prima Facie Evidence of Want of Skill. — In all actions against railroad corporations and all other corporations, companies, partnerships and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, for damages done to persons or property, proof of injury inflicted by the running of engines, locomotives or cars of any such railroad corporations or such other corporation, company, partnership or individual shall be prima facie evidence of the want of reasonable skill and care of such railroad corporation, or such other corporation, company, partnership or individual in reference to such injury. This section shall also apply to passengers and employees of railroad corporations and of such other corporations, companies, partnerships and individuals." Section 1580, Miss. Code 1930, section 1717, Hemingway's Code 1927.

The constitutionality of the above statute was directly attacked but upheld in Mobile, J. & K. C. R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 124 Am. St. Rep. 679, and, in the same case, in Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 138, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463. In discussing the statute in the case just cited, the Supreme Court of the United States, after remarking that the law of evidence is full of presumptions either of law or fact, the former, of course, disputable, and that legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue is but to enact a rule of evidence quite within the general power of government, said:

"We are not impressed with the argument that the supreme court of Mississippi, in construing the act, has declared that the effect of the statute is to create a presumption of liability, giving to it, thereby, an effect in excess of a mere temporary inference of fact. The statutory effect of the rule is to provide that evidence of an injury arising from the actual operation of trains shall create an inference of negligence, which is the main fact in issue. The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done the inference is at an end, and the question of negligence is one for the jury, upon all of the evidence. In default of such evidence, the defendant, in a civil case, must lose, for the prima facie case is enough as matter of law.

"The statute does not, therefore, deny the equal protection of the law, or otherwise fail in due process of law, because it creates a presumption of liability, since its operation is only to supply an inference of liability in the absence of other evidence contradicting such inference.

"That a legislative presumption...

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3 practice notes
  • Bon Homie & H. S. R. Co. v. Ferguson, 29434
    • United States
    • United States State Supreme Court of Mississippi
    • May 4, 1931
    ...give to the jury, at the request of the plaintiff, an instruction on the prima facie statute. Wickton v. Louisville & N. R. Company, 45 F.2d 615; Western & Atlantic R. Company v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884. The duty does not rest upon a railroad company to m......
  • Louisville & N.R. Co. v. Cuevas, 29748
    • United States
    • Mississippi Supreme Court
    • February 1, 1932
    ...R. Co. v. Waldren, 133 So. 241; Western & Atlantic R. R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445; Wickton v. L. & N. R. R. Co., 45 F.2d 615. Gex & Gex, of Bay St. Louis, for appellee. An erroneous instruction can, and will, be cured by one that nullifies it and the instructions......
  • Adams-Newell Lumber, Co. v. Jones, 29753
    • United States
    • Mississippi Supreme Court
    • January 25, 1932
    ...for the plaintiff in the court below based upon section 1580 of Code 1930. Wickton v. Louisville & Northern Railroad Company, 45 F.2d 615. Williamson & Clayton and Nate S. Williamson, all of Meridian, for appellee. The prima facie instruction was harmless error. Andrew McMullen v. K......
3 cases
  • Bon Homie & H. S. R. Co. v. Ferguson, 29434
    • United States
    • United States State Supreme Court of Mississippi
    • May 4, 1931
    ...to give to the jury, at the request of the plaintiff, an instruction on the prima facie statute. Wickton v. Louisville & N. R. Company, 45 F.2d 615; Western & Atlantic R. Company v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884. The duty does not rest upon a railroad company to mainta......
  • Louisville & N.R. Co. v. Cuevas, 29748
    • United States
    • Mississippi Supreme Court
    • February 1, 1932
    ...& G. N. R. Co. v. Waldren, 133 So. 241; Western & Atlantic R. R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445; Wickton v. L. & N. R. R. Co., 45 F.2d 615. Gex & Gex, of Bay St. Louis, for appellee. An erroneous instruction can, and will, be cured by one that nullifies it and the instructions mus......
  • Adams-Newell Lumber, Co. v. Jones, 29753
    • United States
    • Mississippi Supreme Court
    • January 25, 1932
    ...instruction for the plaintiff in the court below based upon section 1580 of Code 1930. Wickton v. Louisville & Northern Railroad Company, 45 F.2d 615. Williamson & Clayton and Nate S. Williamson, all of Meridian, for appellee. The prima facie instruction was harmless error. Andrew McMullen ......

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