Gulf, Mobile & Northern R. Co. v. Weldy

• Decision Date: 14 June 1943
• Docket Number: 35369.
• Citation: 195 Miss. 345,14 So.2d 340
• Court: Mississippi Supreme Court
• Parties: GULF, MOBILE & NORTHERN R. CO. v. WELDY.

14 So.2d 340

195 Miss. 345

GULF, MOBILE & NORTHERN R. CO. v. WELDY.

No. 35369.

Supreme Court of Mississippi

June 14, 1943

E C. Fishel, of Hattiesburg, C. C. Smith, of Richton, and Welch & Cooper, of Laurel, for appellant.

H D. Young, of New Augusta, and Currie & Currie, of Hattiesburg, for appellee.

SMITH Chief Justice.

Upon a former appeal of this case the judgment in favor of the plaintiff in the sum of $10,000, as damages for personal injuries, was reversed because of an erroneous instruction. Gulf, M. & N. R. Co. v. Weldy, Miss., 8 So.2d 249. On the next trial, he recovered a verdict and judgment for the sum of $20,000, and the defendant again appeals.

The appellant assigns as the principal grounds of error on this appeal: (1) the refusal of the court to grant a peremptory instruction in its favor, for the reason (a) that the testimony of the plaintiff as to how he sustained his injuries is so unreasonable as to be wholly unbelievable and therefore insufficient to sustain the verdict, and (b) that the plaintiff wholly failed to prove the allegation of his declaration to the effect that the brakeman of the railroad company, who is alleged to have knocked the plaintiff off a freight train and caused his injury, was acting in the scope of his employment or in the line of his appointed duties; (2) that the trial court erred in overruling the defendant's motion for a new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence (3) the action of the court in overruling an objection to the statement made by one of the attorneys for the plaintiff in his closing argument to the jury to the effect that "one year ago when this case was tried a jury of twelve good men believed Terry Weldy"; and (5) that the verdict of the jury is greatly excessive.

As to proposition (a) of the first ground assigned for error, we cannot say, with full assurance, that the proof on behalf of the plaintiff does not meet the requirement or standard set forth in the case of Thomas v. Williamson, 185 Miss 83, 187 So. 220, 221, wherein it was said: "When all the testimony in behalf of a party litigant is taken as a whole and is considered as if undisputed by the other party, and that testimony is reconcilable in essential features with the material facts which are undisputed, and when so reconciled, and taken together with the undisputed facts, is of such a real and substantial nature that impartial men of sound judgment could reasonably believe it, and prudently act thereon, and thence it furnishes a factual basis adequate to sustain the case of the party, a peremptory instruction should not be granted against him."

As to proposition (b) of the first ground assigned for error, certain rules of the railroad company were introduced in evidence from a rule-book prescribing the duties of trainmen which fail to show that the brakeman on the train in question had any duty to perform in regard to ejecting a trespasser therefrom; but it appears that during the cross-examination of the conductor on this train, he was asked the question: "Now, Mr. Derrick, you being the conductor, it would be the duty of a brakeman or flagman finding a trespasser on the train to notify you, wouldn't it?" To which question he replied, "Well, yes, sir." Then when the brakeman was interrogated as to what his instructions were as to what to do with third persons riding on the train, he answered: "Let them ride-don't have anything to do with them." Thus we have a conflict in the evidence as to whether or not the brakeman had any duty to perform with reference to a trespasser found on such a train; and this court, in the case of Loper v. Yazoo & M. V. R. Co., 166 Miss. 79, 145 So. 743, 745, said: "The act of ejecting a trespasser from an engine, and the act of reporting his presence thereon, may be different in kind; but that fact is not conclusive, for, when considered in the light of the ultimate object to be accomplished, they will appear to be similar in quality, and the second to be incidental to the first; and an unauthorized act is incidental to an authorized act, though different in kind, if it is subordinate and pertinent thereto, provided it 'be something within the ultimate objective of the principal, and something which it is not unlikely that the servant might do.' A.L.I.Rest., supra, p. 55; Southern Railway Co. v. Hunter, supra [74 Miss. 444, 21 So. 304]; Walters v. Stonewall Cotton Mills, supra [136 Miss. 361, 101 So. 495], and Alden Hills v. Pendergraft, supra [149 Miss. 595, 115 So. 713]."

On the second ground assigned for error, the conclusion is inescapable on the record that the verdict is in fact contrary to the great weight of the evidence on the particular issue as to whether the railroad company was at fault in regard to the injuries complained of, assuming that, as the preponderance of the evidence shows, the plaintiff sustained his injuries by being dragged underneath the freight train. But whether the case should be reversed on this ground, we are not called upon to say in view of other errors hereinafter mentioned.

We shall now consider in connection with the weight of the evidence the third assignment of error hereinbefore stated.

The proof upon the trial after the case was remanded necessarily disclosed that there had been a previous trial, since the testimony of two of the witnesses for the defendant who had died since the first trial was introduced in evidence upon the second trial, and other witnesses were cross-examined on such trial in regard to their testimony on the former trial; but it did not appear from the testimony submitted to the jury whether the first trial had resulted in a verdict for the plaintiff or had been concluded by a peremptory instruction in favor of the defendant before the former appeal to this court.

At the time the jury was told that "one year ago when this case was tried a jury of twelve good men believed Terry Weldy", the jurors were confronted with the fact that he had testified that he had not been drinking on the night in question shortly before he claims to have caught the freight train at Beaumont, about an hour before he sustained his injuries during the switching operations at Richton, whereas it was shown by the testimony of several apparently disinterested witnesses that he was seen at several different places at Beaumont in an intoxicated condition shortly prior to boarding the train; that he claimed to have been riding on a gondola car at the time the brakeman entered such car at the north end to approach and assault him at the south end thereof, whereas it was shown by the record of the defendant company that there was no such car in the train on the occasion complained of; that according to the testimony on behalf of the plaintiff, he had...