New Orleans & N.E.R. Co. v. Miles

• Decision Date: 22 January 1945
• Docket Number: 35752.
• Citation: 20 So.2d 657,197 Miss. 846
• Court: Mississippi Supreme Court
• Parties: NEW ORLEANS & N. E. R. CO. et al. v. MILES et al.

20 So.2d 657

197 Miss. 846

NEW ORLEANS & N. E. R. CO. et al. v. MILES et al.

No. 35752.

Supreme Court of Mississippi

January 22, 1945

Ben F. Cameron and Lester E. Wills, both of Meridian, for appellants.

Nate S. Williamson and E. T. Strange, both of Meridian, for appellees.

GRIFFITH, Justice.

Appellees the widow and children of Harvey Miles deceased, instituted an action in tort against defendants alleging that by their negligence the deceased was fatally injured by a cut of loaded coal cars being backed in a switching operation across and beyond 33rd Avenue in the City of Meridian. The declaration, when analyzed, alleges that the decedent was struck either (1) at the crossing, or (2) in close proximity thereto, or (3) at some point in close proximity to a well beaten and frequently traveled path extending in a westerly direction alongside the switch track; and the negligence alleged is (a) that the statutory crossing signal by bell or whistle was not given; (b) that no flagman was on the end of the cut of backing cars to give warning at the crossing as required by a city ordinance; (c) that no flagman or other employee gave any warning beyond said crossing when it should have been anticipated that persons would be on or along the paths aforementioned; (d) that defendant had negligently failed to have the crossing properly lighted; (e) that the said cut of cars were being switched at an excessive and dangerous rate of speed, and (f) that one or more members of the switching crew were under the influence of intoxicating liquor. It is undisputed that the injury occurred at night and that when the rescuers reached the deceased he was found about eleven car lengths, not counting engine and tender, west of the crossing.

We believe it to be reasonably clear from this record, either as to what is shown by it or as to anything it cogently suggests, that unless decedent was struck in or upon the avenue crossing there is no liability. The record and briefs have been fully examined by two judges and fully reported at not less than two conferences as required by our usual procedure, and as a result not one of us can say that he believes it reasonably probable that the initial injury occurred in or on the avenue crossing; wherefore the first question is whether there is enough evidence on that issue under cases such as Truckers Exchange Bank v Conroy, 190 Miss. 242, 199 So. 301, to escape a peremptory charge. As to this we have been divided in opinion, but inasmuch as the judgment must be reversed upon the instructions we resolve the doubt as to the peremptory in favor of the plaintiffs, and in the hope that, when a new trial is confined to the one controlling issue, free from the distractions and confusions of other issues not pertinent to the initial injury as having occurred in or on the avenue crossing, a better and more dependable record may be presented to another jury.

Instruction No. 1 granted at the reques of plaintiffs reads as follows:

'The court instructs the jury for the plaintiffs that if you believe from the preponderance of the evidence that the defendant railroad company or any of its servants or agents negligently caused a train of cars or any one of the cars in the train about which the witnesses have testified, to injure Harvey Miles on or about the night of July 17, 1943 and that he suffered and died as a proximate result thereof, then in that event it is the duty of the jury to render your verdict for the plaintiffs.'

Instruction No. 4 for plaintiffs is as follows:

'The court instructs the jury for the plaintiffs that if you believe from a preponderance of the evidence that the defendant railroad company, acting by and through its servants, agents or employees, or any one of them, at the time and place about which the witnesses have testified operated a train of cars in such a way as to negligently endanger the life and limb of any person or the safety of any property, and that said negligence, if any, proximately caused injury to and the death of Harvey Miles, or proximately contributed, in whole or in part, to the injuries and death of Harvey Miles, then in that event, it is your sworn duty to find for the plaintiffs, and this is true without regard to whether Harvey Miles was or was not negligent.'

Plaintiffs' instruction No. 6 reads as follows:

'The court instructs the jury for the plaintiffs that if you believe from a preponderance of the evidence that has been admitted under the supervision of the court for your consideration in this case, that the defendant railroad company, acting by and through any of its servants or agents, was guilty of any negligence which proximately caused injury to or the death of Harvey Miles, or that proximately contributed, in whole or in part, to the injuries and death suffered and sustained by Harvey Miles on the occasion about which the witnesses have testified in this case, it will be your sworn duty to render your verdict for the plaintiffs whethr Harvey Miles was or was not guilty of contributory negligence.'

Instruction No. 5 is to the same effect and contains also the phrase 'at the time and place about which the witnesses have testified' which is found in the copied Instruction No. 4. We especially call attention to the phrase in Instruction No. 6 which allowed recovery if the jury believed from the proponderance of the evidence that defendant was guilty of any negligence which proximately caused or contributed to the injury. Italics ours.

When negligence is the subject of the action, the instructions must confine the verdict to the ground or grounds of negligence alleged and in support of which there has been substantial proof. 1 Reid's Brannon Instructions to Juries, p. 325, sec. 117. In Hines v. McCullers, 121 Miss. 666, 676, 83 So. 734, the Court said that this rule is elementary. It is elementary, and for obvious reasons, that an instruction which will allow a jury to find negligence without giving a guide as to what specific acts or omissions within the pleadings and proof are sufficient to constitute actionable negligence is erroneous. In support of the rule as stated we need go no further than to cite the apt and forcible language of McGowen, J., in Graham v. Brummett, 182 Miss. 580, 591, 181 So. 721. To the same effect, however, is McDonough Motor Express v. Spiers, 180 Miss. 78, 176 So. 723, 177 So. 655, and Ross v. Louisville & N. R. Co., 181 Miss. 795, 181 So. 133, 134--it being pointed out in the latter case that an instruction which does not conform to the rule 'not only opens the field to any sort of negligence but as...