Alabama & Alabama & Vicksburg Railway Co. v. Thornhill, 16,216

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSMITH, C. J.
Citation106 Miss. 387,63 So. 674
PartiesAlabama & Vicksburg Railway Company v. CLARENCE THORNHILL
Decision Date22 December 1913
Docket Number16,216

63 So. 674

106 Miss. 387

Alabama & Vicksburg Railway Company
v.

CLARENCE THORNHILL

No. 16,216

Supreme Court of Mississippi

December 22, 1913


APPEAL from the circuit court of Hinds county, HON. W. A. HENRY, Judge.

Suit by Clarence Thornhill against the Alabama & Vicksburg Railway Company. From a judgment for plaintiff defendant appeals.

Appellee was plaintiff in the court below, and appellant was defendant. The case went to a jury, who returned a judgment for five thousand dollars, and the railroad company appeals. The opinion states the facts.

Section 1985 of the Code of 1906 is as follows: "In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to passengers and employees of railroad companies."

On the trial the court granted the following instruction at the request of the plaintiff below:

"(3) The court instructs the jury for the plaintiff that ordinarily the burden of proof is upon the plaintiff throughout to establish his right of recovery; but in this case the jury is instructed that, if the plaintiff has proved that the injury complained of in the declaration was inflicted on the track of the railroad company and by the running of its locomotive or cars, this is prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury, and imposes the burden of proof upon the defendant to show that it was not guilty of negligence as to this, and this presumption cannot be overcome by conjecture, but the circumstances of the accident must be clearly shown, and the facts so proven must exonerate the defendant from blame, otherwise the defendant is not relieved from liability, and in this case, unless the jury believe from the evidence that the defendant has overcome this burden, then the jury must find for the plaintiff."

The court refused the following instruction requested by the defendant:

"(7) If the jury believe from the evidence that the defendant was not guilty of negligence which caused plaintiff's injuries, they will find for the defendant, and, if they are unable on their oaths to find from the evidence that plaintiff was guilty of negligence causing the said injuries, they will find for the defendant."

Affirmed.

R. H. & J. H. Thompson, for appellant.

We insist that the trial court erred prejudicially to the appellant in refusing to permit defendant to show by the plaintiff himself that he was accustomed to jump on moving trains, and that he has on several occasions before jumped or attempted to jump on moving trains. The nature of boys is well known; they seem instinctively to have a propensity to jump on and ride moving cars. The plaintiff, of course, may have been an exception to the average boy in this particular, but the defendant had the right to ascertain the fact and show that he was not, and particularly did it have the right to show that the plaintiff was accustomed, to use the language of the street, "to hop trains," and enjoy rides thereon in that way. The defendant's testimony, if true, showed that on the occasion in question the boy jumped the train, or had at least attempted to do so, and his custom and habit in this particular would have strengthened the defendant's testimony on the point. The plaintiff's testimony showed that the boy did not on the occasion in question "hop the train," and his habit and custom in this regard would not only have strengthened defendant's testimony on the point, but would have weakened the plaintiff's. In so close a case as this (we denominate it a close one simply because no higher place can be claimed for it by the plaintiff himself) surely all testimony which would have strengthened the defendant's theory and weakened the plaintiff's ought to have been admitted. A boy who is in the habit of "hopping trains" is much more likely to have done so on any particular occasion when opportunity presented itself than one who was not so accustomed. This court cannot say from this record that the custom and habit of the boy, had it been shown that he was accustomed to "hop trains," would not have been influential with the jury. It ought to have had and was entitled to considerable weight.

"Of the probative value of a person's habit or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day's experience and reasoning makes it clear enough. 1861, FLANDRAU, J., in Walker v. Barren, 6 Miss. 508, 512: '(Customs) may, like any other facts or circumstances, be shown when their existence will increase or diminish the probabilities of an act having been done or not done, which act is the subject of contest.' 1873, SARGENT, C. J., in State v. Railroad, 52 N.H. 528, 532: 'It would seem to be axiomatic that a man is likely to do or not to do a thing, or to do it or not to do it in a particular way (according) as he is in the habit of doing or not doing it.'" Wigmore on Evidence, par. 92.

The court below erred in refusing the instruction numbered 7 asked by the defendant, now appellant. The instruction so refused reads thus: "If the jury believe from the evidence that the defendant was not guilty of negligence which caused plaintiff's injuries they will find for the defendant; and if they are unable on their oaths to find from the evidence that the plaintiff was guilty of negligence causing the said injuries, they will find for the defendant."

As above stated, the facts of this case were fully developed by the witness for the one side or the other. Nothing was left to conjecture or statutory presumption. Code 1906, section 1985, to the effect that proof of injuries inflicted by the running of railroad locomotives or cars shall be prima facie evidence of negligence on the part of the employees of the company operating the same, had no application to the case. It has been often decided in this state that when the facts of a case are proven there is no room for presumptions, statutory or any other kind. Proof of the circumstances connected with an injury resulting from the running of a railroad train removes all ground for resorting to legal presumptions. Owen v. Illinois, etc., R. Co., 77 Miss. 142; Nichols v. Gulf, etc., R. Co., 83 Miss. 126.

The history of the section of the Code under consideration is well known. It has been decided that presumption should yield to facts where they are sufficiently shown. Vicksburg Railroad Co. v. Phillips, 64 Miss. 693; New Orleans, etc., Railroad Co. v. Bourgeois, 66 Miss. 3; Bedford v. Louisville, etc., R. Co., 65 Miss. 385; Hamlin v. Yazoo, etc., R. Co., 72 Miss. 39.

The Nichols case (83 Miss. 126) is conclusive of the point we make and the decision therein made has not been modified or changed in any particular since its rendition.

The court below erred in granting the instruction, numbered 3 given for the plaintiff. This instruction really presents the same question as the refusal of the instruction numbered 7 asked for by the defendant. Although all the facts and circumstances of the case had been proved by the one set or the other of the witnesses, yet the court told the jury, in the instruction given for the plaintiff, that the burden of proof still rested on the defendant to show that it was not guilty of negligence and to show the same clearly. While proof of the infliction of the injuries by the running of cars, had nothing else been proved, would have required of the defendant to show facts exonerating it from liability, yet when the facts were so shown, as they were in this case, the instruction now complained of imposed on the defendant the additional burden which the courts have told us in several cases it did not have to bear. Hamlin v. Yazoo, etc., R. Co., 72 Miss. 39.

The court below further erred in granting the sixth instruction given at the request of the plaintiff. The instruction is to the effect that the jury should wholly disregard the testimony showing that plaintiff's witness, Lillian Wilson, had been convicted of vagrancy. The suit did not involve an effort to enforce a judgment against the witness, Madam Wilson. The judgment was between other parties, was wholly collateral and incidental to this suit and the production of records was not essential.

Wells & Wells, for appellee.

Did the trial court err in refusing to permit evidence to be adduced going to show if it was a fact, that plaintiff had on several former occasions jumped on, or hopped on, or attempted to jump on moving trains, or that he was used to jumping trains?

Manifestly, it did not. Counsel for appellant cite two old cases, one from Minnesota and one from New Hampshire, each forty or fifty years old, in support of the contrary doctrine to the effect that such testimony was admissible. But the overwhelming weight of authority is directly to the contrary.

Among the multitude of cases which might be cited holding to the true doctrine on this point are the following: Totarella v. N. Y., etc., 65 N.Y.S. 1044; Hubbard v. Town of Mason, 60 Iowa 400; Georgia, etc., v. Evans, 87 Ga. 673; Glass v. Memphis, 94 Ala. 581; Eaton v. Telegraph Co., 68 Me. 63-67; Chaise v. Maine, 77 Me. 62; Barrows v. Trieber, 21 Maruland 320; Aiken v. Holyoke, 184 Mass. 269-274; Geggenheim v. Lake Shore, etc., 66 Mich. 150-160; Eppendorf v. Brooklyn, 69 N.Y. 195; Peoria v. Clayberg, 107 Ill. 644; Edwards v. City of Worcester, 172 Mass. 104; C. & A. R. R. v. Gibbons, 65 Ill.App. 550-553; C., B. & Q. R. R. v. Genderson, 65 Ill.App. 638; I. G. N. R. R. v. Ins. Co., 71 S.W. 772, 31 Tex. Civ. App. 272; M., K. & T. R. R. v. Johnson, 92 Texas, 380; Barker v. Savage, 3 N.Y. Ct. (I...

To continue reading

Request your trial
45 practice notes
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...as to the circumstances attending this injury was conflicting, but it was held in the case of Alabama & Vicksburg Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674, that: "Even though the facts and circumstances are in evidence, and although there may be no conflict therein as to what these f......
  • Alabama Great Southern Ry. Co. v. Daniell, 16487
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1914
    ...to such injury, contained in the recent case of Alabama & Vicksburg Railroad Co. v. Thornhill, decided December 22, 1913, and reported in 63 So. 674, it is unnecessary to review the various decisions construing this statute. Fuller v. Railroad Company, 100 Miss. 705; Railroad Company v. Col......
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...R. R. Co. v. Phillips, 64 Miss. 693; R. R. Co. v. Murray, 91 Miss. 546; Hollingshed v. R. R. Co., 99 Miss. 464; R. R. Co. v. Thornhill, 106 Miss. 387; R. R. Co. v. Knight, 138 Miss. 621; and R. R. Co. v. Hudson, 142 Miss 542, the brief of counsel for appellees to be filed on or before Monda......
  • Gulf, M. & N. R. Co. v. Brown, 24519
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1925
    ...677; 83 So. 734; Railroad v. Daniell, 108 Miss. 369, 66 So. 730; Railroad v. Gray, 118 Miss. 612, 79 So. 812; Railway Co. v. Thornhill, 106 Miss. 387, 63 So. 674. The use of the presumption statute as applied to crossing accidents has been condemned, as above shown, in nearly all the recent......
  • Request a trial to view additional results
45 cases
  • Mississippi Cent R. Co. v. Knight, 24615
    • United States
    • Mississippi Supreme Court
    • March 30, 1925
    ...as to the circumstances attending this injury was conflicting, but it was held in the case of Alabama & Vicksburg Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674, that: "Even though the facts and circumstances are in evidence, and although there may be no conflict therein as to what these f......
  • Alabama Great Southern Ry. Co. v. Daniell, 16487
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1914
    ...to such injury, contained in the recent case of Alabama & Vicksburg Railroad Co. v. Thornhill, decided December 22, 1913, and reported in 63 So. 674, it is unnecessary to review the various decisions construing this statute. Fuller v. Railroad Company, 100 Miss. 705; Railroad Company v. Col......
  • Columbus & Greenville R. Co. v. Lee, 26535
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1928
    ...R. R. Co. v. Phillips, 64 Miss. 693; R. R. Co. v. Murray, 91 Miss. 546; Hollingshed v. R. R. Co., 99 Miss. 464; R. R. Co. v. Thornhill, 106 Miss. 387; R. R. Co. v. Knight, 138 Miss. 621; and R. R. Co. v. Hudson, 142 Miss 542, the brief of counsel for appellees to be filed on or before Monda......
  • Gulf, M. & N. R. Co. v. Brown, 24519
    • United States
    • United States State Supreme Court of Mississippi
    • February 23, 1925
    ...677; 83 So. 734; Railroad v. Daniell, 108 Miss. 369, 66 So. 730; Railroad v. Gray, 118 Miss. 612, 79 So. 812; Railway Co. v. Thornhill, 106 Miss. 387, 63 So. 674. The use of the presumption statute as applied to crossing accidents has been condemned, as above shown, in nearly all the recent......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT