Alabama Great Southern Ry. Co. v. Daniell

• Decision Date: 07 December 1914
• Docket Number: 16487
• Citation: 108 Miss. 358,66 So. 730
• Court: Mississippi Supreme Court
• Parties: ALABAMA GREAT SOUTHERN RY. CO. v. DANIELL et al

66 So. 730

108 Miss. 358

ALABAMA GREAT SOUTHERN RY. CO. v. DANIELL et al

No. 16487

Supreme Court of Mississippi

December 7, 1914

APPEAL from the circuit court of Lauderdale county. HON. J. L BUCKLEY, Judge.

Suit by Mrs. E. L. Daniell and others against the Alabama Great Southern Railroad Company. From a judgment for plaintiffs defendant appeals.

The instructions numbered 1 and 2 for plaintiffs, referred to in the opinion, were as follows:

"(1) If the jury believe from the evidence that the injury to the plaintiff was inflicted by the running of locomotives or cars by the Alabama Great Southern Railroad Company, then this is prima facie proof of the negligence of said railroad company authorizing a recovery by the plaintiff, and to overcome the statutory presumption it devolves upon the defendant railroad company to exculpate itself by establishing to the satisfaction of the jury such circumstances of excuse as to relieve it from liability; and the jury are further instructed that this statutory presumption cannot be overthrown by conjecture, and that the circumstances of the accident must clearly be shown, and the facts so proven must exonerate the railroad company from blame, and if it be not so proven and the attendant circumstances of the accident remain doubtful, then the railroad company is not relieved from liability, and the presumption controls, and the jury should find for the plaintiff.

"(2) The jury are instructed that if the facts in evidence do not disclose to your satisfaction how the accident occurred, but if they do disclose that the injury was inflicted by the running of locomotives or cars of defendant railroad company then the law presumes that the injury was inflicted through the want of reasonable skill and care on the part of the defendant, or of its agents and servants, and the defendant cannot escape liability by evidence leaving it a matter of conjecture as to how the accident occurred, but the defendant must clearly show facts exonerating itself from liability and in the absence thereof, it is your duty to find for the plaintiff and assess the damages in pursuance of other instructions herein."

Reversed and remanded.

Catchings & Catchings, for appellant.

In view of the elaborate discussion of section 1985 of the Code of 1906, providing that in an action against a railroad for personal injuries, proof of injury from the running of the cars or locomotive shall be prima facie evidence of negligence in reference 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. Cole, 100 Miss. 173; Mobile etc., R. Co. v. Stroud, 64 Miss. 784; Vicksburg Railroad Co. v. McGowan, 62 Miss. 682; Dooly v. Mobile etc., R. Co., 69 Miss. 648; Louisville, etc., R. Co. v. Williams, 69 Miss. 631. See, also, Westbrook v. Mobile etc. R. Co., 66 Miss. 560; Vicksburg v. McLain, 67. Miss. 4; Louisville, etc., R. Co. v. Hirsh, 69 Miss. 126; Railroad Co. v. Moore, 101 Miss. 768; Louisville & Nashville R. Co. v. Chocranm, 16 So. 797; Midland R. Co. v. McGill, 77 Am. St. Rep. 52; Illinois Central R. Co. v. Graves, 75 Miss. 362; Railroad Co. v. Hunnicutt, 98 Miss. 272.

It follows from what has been said, that instructions 1 and 2, which were given at the request of plaintiffs, should have been refused. Vicksburg & M. R. R. Co. v. McGowan, 62 Miss. 682. In 2 Wigmore on Evidence, 1053, it is said that admissions are not subject to the ordinary rules for testimonial qualifications as to personal knowledge, etc. This court itself has expressly held that statements made by the injured person as to who was at fault are competent. Southern Railway Company v. McLellan, 80 Miss. 700.

The judgment appealed from was founded altogether upon the statutory presumption of negligence as defined and construed in instructions to the jury, and we respectfully submit will, if permitted to stand, result in depriving appellant of its property without due process of law in violation of the fourteenth amendment to the Constitution of the United States.

G. Q. Hall and Hall & Jacobson, for appellee.

The lower court properly submitted this case to the jury. V. & M. R. R. Co. v. Hamilton, 62 Miss. 503; New Orleans, M. & C. R. R. Co. v. Cole, 101 Miss. 173; Easley v. A. G. S. R. R. Co., 96 Miss. 396; Natchez & Company v. Crawford, 99 Miss. 697; Railroad Company v. Carroll, 102 Miss. 830; Mississippi Central Railroad Company v. Robinson, 64 So. 838; A. & V. R. R. Co. v. Thornhill, 63 So. 674; Bedford v. L. N. O. & T. R. R. Co., 65 Miss. ; Jefferson v. Southern Railway Company, 62. So. 643; C. I. Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; R. R. Co. v. Carroll, 103 Miss. 830; N. O., M. & C. R. R. Co. v. Harrison, 61 So. 655; N. O., M. & C. R. R. Co. v. Cole, 101 Miss. 173; Railroad Company v. Brooks, 85 Miss. 275, 38 So. 40; Yazoo R. Co. v. Landrum, 89 Miss. 399, 42 So. 675; Easley v. Railroad Co., 96 Miss. 399, 50 So. 491; Railroad Co. v. Hunnicutt, 53 So. 617; Fuller v. R. R. Co., 56 So. 783; Railroad v. Phillips, 64 Miss. 704, 2 So. 537; Crawford v. St. L. & S. F. R. Co., 102 Miss. 269; Mitchell v. N. O. & N.E. R. R. Co., 36 So. 1.

No error was committed in granting and refusing of instructions. We respectfully submit that the court below made no error in granting and refusing of instructions as alleged by counsel for appellant in their brief on pages 23 to 31 inclusive. Appellant first complains of instructions number one and two, given for the plaintiff in the court below. Both of these instructions simply announce the law of the case as imposed by section 1985, of Code of 1906. Miss. Central Railroad Co. v. Robinson, 64 So. 838; R. R. Co. v. Carroll, 60 So. 1013; R. R. Co. v. Robinson, 64 So. 838; Vicksburg & M. R. R. Co. v. McGowan, 62 Miss. 682; Railroad Company v. Hardy, 88 Miss. 745; Railway Co. v. Floyd, 99 Miss. 533; R. R. Co. v. Hardy, 88 Miss. 432; Williamson v. State, 95 Miss. 671; Sou. Ry. Co. v. Floyd, 99 Miss. 519; Miss. Cent. R. R. Co. v. Pillows, 58 So. 483; Hooper v. State, 83 Miss. 402; Scates v. State, 64 Miss. 644; Manhaffy v. R. & B., 100 Miss. 122.

No error was made in admitting and excluding evidence. In support of our contention, we cite Bloom v. McGrath & Compton, 53 Miss. 258; Lipscomb case, 75 Miss. 559. The effect of the judgment appealed from does not deprive appellant of its property without due process of law in contravention of the fourteenth amendment of the United States.

In response to the last assignment of error made by counsel for appellant on pages 41, 42, 43, 44, and 45 of their brief, we deem it sufficient to say that this alleged error has been so completely disposed of by both the supreme court of the United States and the supreme court of Mississippi that we will content ourselves to quote from the opinion of SMITH, J., on page 178 of volume 101, Mississippi Reports, wherein he said the following in the case of New Orleans, M. & C. R. R. Co. v. Cole: "Appellant further contends that, if section 1985 of the Code is to be construed as we have herein construed it, then it is in conflict with the fourteenth amendment to the Federal Constitution in that it deprives a railroad company of the equal protection of the laws and of its property without due process of law. This contention has been disposed of by the opinion of the supreme court of the United States in the case of M. & K. C. R. R. Co. v. Turnipseed, 219 U.S. 36, 31 S.Ct. 136, 55 L.Ed. 78, 32 L. R. A. (N. S.) 226, in which the court upheld the constitutionality of the statute with the construction put upon it by this court in the Brooks case before it."

The test laid down by the supreme court in the Turnipseed case is this: "If a legislative provision is not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases, and does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him."

No construction placed upon the statute by the court in any case, has deprived anybody of the opportunity to submit to the jury in his defense all of the facts bearing upon the issue.

OPINION

SMITH, C. J.

This is an action for damages resulting from the death of Harry Daniell, in which a judgment was rendered in the court below for appellees, who were plaintiffs therein. Appellees attempted only to prove a prima facie case of liability under section 1985 of the Code, and upon the court's overruling the motion to exclude this evidence from the jury, the defendants introduced a number of witnesses, from whose testimony it appears that on August 22 1911, at about two-thirty a. m., appellant's passenger train No. 1, from Birmingham to Meridian, arrived at Cuba, a station in Alabama about two miles from the Mississippi-Alabama state line, and while there Harry Daniell, for whose death this action is brought, and John Shannon, were discovered upon the train "stealing a ride." They were ejected therefrom without violence on the part of the railway employees or complaint on the part of Daniell and Shannon, and the train proceeded upon its journey. A little over two hours thereafter, that is, about four-thirty a. m., of the same day, appellant's freight train No. 214, also from Birmingham to Meridian, arrived at Cuba, and there passed appellant's freight train No. 72 from Meridian to Birmingham, this train No. 72 being the only one of appellant's trains that had crossed the state line after it had been crossed by passenger train No. 1. When train No. 214...