Alabama & V. Ry. Co. v. Dennis

• Decision Date: 20 March 1922
• Docket Number: 22232
• Citation: 128 Miss. 298,91 So. 4
• Parties: ALABAMA & V. RY. CO. v. DENNIS
• Court: Mississippi Supreme Court

91 So. 4

128 Miss. 298

ALABAMA & V. RY. CO. v. DENNIS

No. 22232

Supreme Court of Mississippi

March 20, 1922

1. MASTER AND SERVANT. Statutory duty of maintaining couplers absolute.

The Safety Appliance Act (27 Stat. L. 531, 8 Fed. Stat. Ann. [2d Ed.] 1155 [U. S. Comp. St. sections 8605-8612]) imposes upon a railroad company the absolute duty of maintaining the couplers of its cars at all times in such condition that they will couple automatically by impact; and the failure of any of its couplers so to do, though such failure did not result from any negligence on the part of the railroad company makes the company liable for any damage resulting therefrom to any one of the class for whose benefit the statute was enacted.

2. MASTER AND SERVANT. Defective couplers proximate cause of injury.

Where a brakeman has been compelled to go between cars in order to make a coupling because the automatic couplers failed to work, and is injured, the defective couplers are the proximate cause of his injury within the Safety Appliance Act (U. S. Comp. St., sections 8605-8612).

3. MASTER AND SERVANT. Risk from violation of statute not assumed.

Assumption of risk is not a defense to liability for injuries due to the violation by a defendant railroad company of the Safety Appliance Act (U. S. Comp. St., sections 8605-8612).

4. MASTER AND SERVANT. Contributory negligence no bar to recovery for injuries from violation of statute.

In an action for damages under the federal Employers' Liability Act, contributory negligence is not a defense to liability for injuries due to a violation by a defendant railroad company of the Safety Appliance Act (U. S. Comp. St sections 8605-8612).

5 DAMAGES. Twenty-five thousand dollars verdict for loss of forearm held excessive.

A verdict for twenty-five thousand dollars in an action for damages by a brakeman for the loss of his left forearm because of the negligence of the defendant, the brakeman being thirty years old, physically sound, an experienced railroad man, without training in any other occupation, and who at the time of the trial had been unable since his injury to obtain other employment, is excessive.

6. APPEAL AND ERROR. Damages. Verdict set aside in so far as it fixes amount of damage unless a proper remittitur is entered where limitation in instruction exceeded amount warranted by evidence.

An instruction to the jury, in an action for damages for a personal injury, that in event they believed certain facts therein set forth they should return a verdict for the plaintiff "not to exceed fifty thousand dollars, the amount sued for," is erroneous if the limitation thus placed on the verdict grossly exceeds the amount for which a verdict would be warranted by the evidence; and if the verdict returned pursuant thereto, though less than the limitation placed thereon by the instruction, is excessive and unless a proper remittitur is entered, the verdict should be set aside in so far as it fixes the amount of the damage.

HON. E. L. BRIEN, Special Judge.

APPEAL from circuit court of Scott county, HON. E. L. BRIEN, Special Judge.

Action by Louis Dennis against the Alabama & Vicksburg Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed, with remittitur.

Affirmed, with remittitur.

R. H. Thompson and S. L. McLaurin, for appellant.

W. C. Eastland and M. W. Reily, for appellee.

OPINION

SMITH, C. J.

This is an appeal from a judgment awarding the appellees damages in the sum of twenty-five thousand dollars for an injury received by him while employed by the appellant and by reason of its negligence. The facts disclosed by the evidence are in substance as follows: On March 26, 1920, it became necessary for the appellee, a brakeman employed by the appellant and then engaged in interstate traffic, to assist in the coupling of two of the appellant's cars. One or more attempts were made to couple the cars automatically by impact without success, although the coupler of the car standing still had been opened. The appellee then attempted, with the lever provided for that purpose, to open the coupler of the car that was being pushed forward, but failed to do so. He then went between the cars as the one being pushed forward was approaching the other and attempted to open the coupler of the moving car with his left hand when it was caught and crushed between the couplers, necessitating the amputation of his arm between the wrist and elbow.

The couplers on both cars were such as would ordinarily couple by impact, and the lever was such as would ordinarily enable a person to open the coupler without the necessity of going between the cars; but for some unexplained reason, unless from exposure to the weather, the coupler on the car that was being pushed forward would not open when it came in contact with...