Alabama & V. Ry. Co. v. Kelly

• Decision Date: 20 June 1921
• Docket Number: 21786
• Citation: 88 So. 707,126 Miss. 276
• Parties: ALABAMA & V. RY. CO. v. KELLY
• Court: Mississippi Supreme Court

88 So. 707

126 Miss. 276

ALABAMA & V. RY. CO. v. KELLY

No. 21786

Supreme Court of Mississippi

June 20, 1921

1 RAILROADS. Evidence of negligence as to boy on track held sufficient for jury.

Where in an action for damages against a railroad company for the killing of a twelve-year-old boy walking on the end of the cross-ties the testimony shows that the engineer of the train was on the lookout and had an unobstructed view of a distance of several hundred yards to the point where the boy was walking on the track, and the testimony of the engineer is that, if he had seen the boy at the point where the plaintiff's witnesses testify the boy was walking, he would have known and appreciated the fact that the boy was in danger of being struck by the train and would have stopped the train, the jury could believe from this testimony that the engineer saw the boy on the end of the cross-ties understood and appreciated his danger, and that the boy was unaware of his peril; and this testimony was sufficient to warrant the jury in finding that the engineer was guilty of gross negligence in failing to stop the train before striking the boy.

2 TRIAL. Introduction of testimony by defendant held waiver of peremptory instruction.

Where a defendant, in the circuit court, at the conclusion of the introduction of the testimony for the plaintiff, makes a motion to exclude this testimony and for a peremptory instruction, which is overruled by the court, and the defendant then proceeds to introduce its testimony, the introduction of the testimony by the defendant is a waiver of its right to have this court pass upon the propriety of the exclusion of plaintiff's testimony at the time the motion was presented.

3 DEATH. Thirty thousand dollars held excessive for death of deaf and dumb boy.

The verdict of a jury for thirty thousand dollars consisting of actual and punitory damages for the wrongful death of a twelve-year-old deaf and dumb boy is grossly excessive, and this court will not permit a recovery of over twenty thousand dollars in the case.

HON. A. J. MCLAURIN, Judge.

APPEAL from circuit court of Scott county, HON. A. J. MCLAURIN, Judge.

Action by H. E. Kelly against the Alabama & Vicksburg Railway Company to recover for the death of William G. Kelly. Judgment for plaintiff, and defendant appeals. Affirmed, with remittitur.

Cause reversed and remanded.

Sydney L. McLaurin, Fulton Thompson, R. H. Thompson and J. H. Thompson, for appellant.

We shall first present and discuss those assignments of error which in our judgment go to the whole case and which, if sustained, will result, as we think, in a final disposition of the case in appellant's favor, presenting the other assignments of error afterwards.

First. The court below should have sustained the appellant's motion made when plaintiff rested his case to exclude the testimony and direct the jury to return a verdict for the defendant. Second. The court below should have instructed peremptorily for the defendant as requested to do at the conclusion of all the evidence. Thornhill case, 160 Miss. 541.

Since the United States supreme court (in 1910) delivered its opinion in Mobile, Jackson & Kansas City Railroad Company v. Turnipseed, 219 U.S. 35, on writ of error from this court, it has decided several cases pertinent, and some of them we believe controlling, on the question now under consideration, to which we call attention.

We will now show that the application by the trial court of the prima-facie statute to the case at bar denied the defendant railway company a substantive right and this we do by the decisions of the United States supreme court. Central Vermont Railway Company v. White (decided June 21, 1915), 238 U.S. 507; McNeil v. Holbrook, 12 Pet. 89; Phillips v. Grand Trunk Ry., 236 U.S. 662; Boyd v. Clark, 8 F. 849; Howell v. Horwick, 14 Mass. 188; Cooper v. Lyons, 77 Tenn. 597 (2); Newcombe v. Steamboat Co., 3 Iowa (G. Greene), 295; Railroad v. Gladmon, 15 Wall. 401 (1), 407-408; Hough v. Railway Co., 100 U.S. 225; Inland etc. v. Tolson, 139 U.S. 551 (4), 557; Washington, etc. R. R. v. Harmon, 147 U.S. 581; Hemingway v. Ill. Cent. R. R., 114 F. 843; Seaboard Air Line Railroad Co. v. Moore, 228 U.S. 434; New Orleans & Northeastern Railroad Company v. Harris, 247 U.S. 367 (decided in 1918); Central Vermont Railroad Co. v. Harris, 247 U.S. 367 (decided in 1918); Central Vermont Railway Company v. White, 238 U.S. 531; Harris Case, 247 U.S. 367; New Orleans & Northeastern Railroad Company v. Scarlett, 249 U.S. 528.

The decisions of the United States supreme court cited by us show that in the opinion of the greatest court on earth the prima-facie statute, if enforced and applied deprives a litigant of something more, of a greater right than is involved in mere procedure or a mere rule of evidence; it deprives of a substantive right awarded other litigants, and, therefore, deprives him of his property without due process of law and denies him the equal protection of the laws, contrary to the constitution of the United States. Mobile, Jackson & Kansas City Railroad case, the supreme court of the United States (219 U. S.)

If we be correct the court below should have instructed the jury to return a verdict in the defendant's favor.

But aside from the validity of the prima-facie statute the peremptory instruction asked for by defendant at the close of all the evidence should have been given because the defendants' witnesses fully and uncontradictedly, proved that plaintiff's afflicted son was not killed by the negligence of defendant's servants or any one of them.

Whatever burden the statute, if valid, placed on defendant was fully met as hereinbefore shown. Vicksburg, etc. R. Co. v. Phillips, 64 Miss. 693; New Orleans, etc. R. Co. v. Bourgeois, 66 Miss. 3; Bedford v. Louisville, etc. R. Co., 65 Miss. 385; Owen v. Illinois, etc., R. Co., 77 Miss. 142; Nichols v. Gulf, etc., R. Co., 83 Miss.

Wood Eastland and J. W. Cassedy, for appellee.

Before discussing the question of the constitutionality of section 1985 which is the first question argued by the appellant under the above heading, we deem it necessary and respectfully submit to the court the case as proven under both the facts and the law was a case of liability. N. & O. M. & C. R. Co. v. Harrison et al., Railroad Company v. Hawkins, 32 Miss. 211; Harrison v. R. W. Co., 93 Miss. 40; Jamison v. I. C. R. Co., 63 Miss. 33; Y. & M. V. R. R. v. Smith, 71 So. 752; Fuller et al. v. I. C. R. R. Co., 65 So. 783; G. & S. I. R. R. Co. v. Boone, 82 So. 335; Bell v. So. R. R. Co., 30 So. 821; Laurel Mercantile Co. v. Mobile & Chicago R. Co., 87 Miss. 675; Issabelle v. I. C. R. R. Co., 25 So. 1037; Potera v. City of Brookhaven, 95 Miss. 775; Westbrook v. M. & O. R. R. Co., 66 Miss. 560; R. R. Co. v. Hawkins, 105 Miss. 18; R. R. Co. v. Hawkins, 82 Miss. 209.

The motion of the appellant for a peremptory instruction and the peremptory instruction requested by the appellant were each properly refused in the court below, for the reason as shown above that there was ample testimony both when appellee rested his case and at the close of all the testimony for both appellant and appellee.

On the question of the constitutionality of section 1985, Code 1906 as amended, we desire to call the court's attention, first, to the state of the record. Six eye-witnesses were introduced by the appellee who gave in detail their version of how William Kelly was killed by the appellant's servant in the operation of its train. On the other side, two witnesses the engineer and the fireman, on behalf of the railroad company gave their version of how William Kelly was killed by appellant's train. The statement given and the circumstances proven by the appellee and the statement given by the witness for the appellant were in hopeless conflict. If the testimony of the appellee should be accepted as true there was and is an undoubted case of liability. On the other hand, if the testimony of the appellant should be accepted as true, there was not a case of liability. In other words, this was not a case of accident unexplained.

It has been repeatedly held by this court that in cases where all the facts have been introduced the presumption arising by reason of said section must yield to the facts and the jury will be required to try the case on the facts proven. Ala. & V. R. R. Co. v. Thornhill, 106 Miss. 389; Ala. G. So. R. Co. v. Daniell, 108 Miss. 368.

We therefore answer counsel's argument as to whether or not section 1985 is or is not constitutional by showing to the court that this question cannot be raised in this case on this appeal.

If this court should determine that the question as to whether or not section 1985 of the Code of 1906, is or is not unconstitutional can be raised on this record, then we respectfully call the court's attention to the recent case of N. O. M. & R. R. Co. v. Cole, 101 Miss. 173, in which this court on the identical question holds: "Code 1906, section 1985, which raises a presumption of negligence upon the proof of an injury received from a running train and cast upon the railroad the burden of rebutting the presumption, is not in violation of constitution United States Amendment 14, in depriving railroads of the equal protection of the laws or depriving them of property without due process of law.

In addition to this case the United States supreme court in the case of Mo. Jack & Kansas City R. R. Co. v. J. A. Turnipseed reported in 55 Law Edition at page 78, is a case involving the identical question now raised by counsel and decided by this court in Coal case, supra, says: "Neither the equal protection of the laws nor due process of law is denied by Mississippi Code 1906, section 1985, under which the actions...