Alabama Great Southern R. Co. v. Johnson, 10823.

• Citation: 140 F.2d 968
• Decision Date: 10 February 1944
• Docket Number: No. 10823.,10823.
• Parties: ALABAMA GREAT SOUTHERN R. CO. et al. v. JOHNSON et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

140 F.2d 968 (1944)

ALABAMA GREAT SOUTHERN R. CO. et al. v. JOHNSON et al.

No. 10823.

Circuit Court of Appeals, Fifth Circuit.

February 10, 1944.

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

Marion W. Reily, of Meridian, Miss., for appellees.

Before SIBLEY, HUTCHESON, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

Brought by the parents and the brothers and sisters of Roger Johnson, age 12, and J. B. Johnson, Jr., age 10, who had been run over and killed while at and on a public crossing, the suit was for the damages recoverable under the Mississippi Statute.¹ The claim was that their deaths were due to the negligence of the defendants, railroad company and Roden, its engineer, in not sounding the statutory signals and in not keeping a reasonable lookout in approaching the crossing. The defenses were (1) a denial of the negligence charged; (2) a claim that decedents, when struck, were not passing over, but were loitering on the tracks, and, therefore, were trespassers to whom there was no duty to give the statutory signals, and (3) that if there was negligence in respect of them, they were themselves guilty of contributory negligence.

There was a trial to a jury, at the conclusion of which the court, rejecting the defendants' contention that they were not under a duty to sound statutory signals, but instructing it that decedents were themselves negligent, submitted the cause to the jury to determine (1) whether the negligence of decedents was the sole proximate cause of the injury, (2) whether the defendants were guilty as charged of failing to give the proper signals and to keep the necessary lookout, and (3) whether if negligent, their negligence was the proximate cause of the deaths. The verdict, a general one with answers also to special interrogatories, was for plaintiffs, fixing their damages at $30,000.00.

Defendants have appealed, assigning as errors (1) the rejection of their claim that the decedents were trespassers, and, therefore, defendants owed them no duty to give the statutory signals; (2) the admission in evidence of testimony as to experiments made for the purpose of determining the point at which the enginemen could have seen the crossing; (3) the admission in evidence of Mrs. Johnson's testimony that she had sent the boys on an errand which required them to cross the tracks; (4) the admission in evidence of statements purported to have been made by the engineer shortly after the accident; and (5) errors in giving and refusing charges including interrogatories and charges on the measure of damages.

A careful examination of the record in the light of these contentions leaves us in no doubt that the court was not in error (1) in completely rejecting defendants' theory that the decedents, who were killed while on a public crossing, were trespassers and no duty of warning was owed them, and (2) in admitting Mrs. Johnson's testimony and the testimony as to the experiments. We are equally without doubt that except as to the instructions with regard to the measure of damages, no reversible error was shown either in respect of the charges given or of those refused. Upon the measure of damages, however, the matter stands quite differently, and because the jury was affirmatively instructed, when there was no evidence to justify the instruction, that they could also find for the plaintiff for such "amount of money that the evidence shows that these boys might have voluntarily contributed to their parents after they reached twenty-one years of age", the judgment must be reversed. In Gulf Refining Co. v. Miller, 153 Miss. 741, 121 So. 482, 484, this instruction was specifically condemned. There, holding that the trial court ought to have granted an instruction, the negative of the one given here, but that, though error, it was not reversible, the court pointedly said:

"We think the court should have granted this instruction, but, in the light of the fact that the jury was not instructed in anywise to consider this element of damage, we do not believe we should reverse this case because of its refusal, for we have no reason to believe that the jury awarded anything on this element of damage." (Emphasis supplied.)

Here the very thing occurred which the court said would have been reversible error if it had occurred there, and it is quite plain that its occurrence here contributed to the unusually large verdict. For, though the jury was instructed that the decedents were negligent and the recovery must be reduced because they were, the verdict in this case was for $30,000, a sum which could not, under Mississippi law, reasonably have been arrived at unless the jury took into consideration the speculative element of future contributions which had been submitted to it, though there was no evidence whatever to guide the jury in, or form a basis for, its determination. Given to the jury in the general charge, the instruction was promptly and immediately objected to and relief from it asked. The District Judge refused relief and adhered to the instruction not on the ground that the evidence justified its giving but on the ground that the precise language had been taken from defendants' special instruction numbered "E" which he had refused to give, and that, though the instruction as a whole had been marked, "Refused", he felt that he should adhere to it.²

We think it quite clear that the complained of action constituted reversible error. The doctrine that there shall be no reversal for invited error is, when justly and correctly applied, a wise and wholesome one. Based as it is, on estoppel, it finds its justification only when facts exist which raise an estoppel. Of wide and varied application, beginning with and attending a trial throughout, it, particularly in those jurisdictions which do not require objections to charges to be made before the jury retires, as Rule 51, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, does,³ prevents a litigant from speculating on a verdict, and then, when the speculation turns out badly, escaping the consequences of having done so. Under the title Appeal and Error, "Estoppel to Allege Error — Error Committed or Invited by Party Complaining", 5 C.J.S. contains an excellent discussion beginning with Sec. 1501 on page 173 and running through Section 1516 on page 237. Throughout the discussion, the basis of the rule that one may not on review complain of errors below for the commission of which he is responsible is made clearly to appear. Section 1507, subd. g, dealing with instructions relative to the amount of recovery, thus clearly states the rule:

"An appellant or plaintiff in error is estopped to question the correctness of an instruction as to the amount of recovery or rule of damages stated in the charge at the trial, when such instruction or rule was adopted at his instance, or is similar to one requested by him."

If defendants had not timely objected to it as incorrect, they could not have complained here of the instruction as error. But they did timely object. In exact accordance with Rule 51, a rule aptly drawn to do away altogether with sleeping complaints and in effect, as to instructions, superseding and making unnecessary resort to the rule of invited error, defendants, before the jury retired to consider its verdict, objected, excepted to, and sought correction of the instruction, the giving of which is now assigned as error. Notwithstanding that defendants, as required by the rule, stated distinctly the matter to which they objected and the ground of the objection, the District Judge refused to correct it. He did this on the wholly untenable ground that because the defendants had suggested the idea in a refused charge and the court had made the idea his own in the general charge, he and they became irrevocably and inescapably committed...