Allman v. Gulf & S. I. R. Co.

• Decision Date: 20 February 1928
• Docket Number: 26927
• Parties: ALLMAN v. GULF & S. I. R. Co. et al. [*]
• Court: Mississippi Supreme Court

115 So. 594

149 Miss. 489

ALLMAN v. GULF & S. I. R. Co. et al. ^[*]

No. 26927

Supreme Court of Mississippi

February 20, 1928

Division B

1 RAILROADS. Evidence of boy's custom of "hopping" trains was competent as supplementing other evidence showing he received injury while so engaged.

In suit for damages for injury sustained by boy alleged to have been caused by defendant railroad companies' negligence while he was crossing tracks at crossing, in which defendants claimed that if plaintiff was injured by train, he was injured while "hopping" train, evidence of plaintiff's custom of "hopping" trains was competent as supplementing other evidence tending to show that he received his injury while so engaged, and was properly admitted.

2. EQUITY. Motion to remand case for further newly-discovered evidence was within chancellor's discretion.

Motion to remand case for further evidence on ground of newly-discovered evidence was within sound discretion of chancellor.

3. EQUITY. Denying motion to remand case for further newly-discovered evidence, which was cumulative, held not abuse of discretion.

Overruling motion to remand case for further evidence, made on ground of newly-discovered evidence, held not abuse of discretion where affidavits accompanying motion showed that newly-discovered evidence was cumulative alone.

4 RAILROADS. Statutory presumption that injury by railroad was caused by negligence is prima-facie only, and must yield to facts shown by evidence (Hemingway's Code 1927, section 1717).

Statutory presumption provided by Code 1906, section 1985 (Hemingway's Code 1927, section 1717), that injury inflicted by running of locomotives or cars was caused by negligence of railroad company, is only prima-facie presumption, and it must yield to facts as shown by evidence.

5 RAILROADS. Evidence held sufficient to overcome statutory presumption that injuries to boy, alleged to have been caused by train, were caused by railroad companies' negligence (Hemingway's Code 1927, section 1717).

In action for injuries to boy alleged to have been caused by defendant railroad companies' negligence while he was crossing tracks at crossing, in which defendants claimed that if plaintiff was injured by running of train, he was injured while "hopping" train, evidence held sufficient to overcome statutory presumption, under Code 1906, section 1985 (Hemingway's Code 1927, section 1717), that injuries were caused by defendants' negligence.

HON. T. P. DALE, Chancellor.

APPEAL from chancery court of Marion county. HON. T. P. DALE, Chancellor.

Suit by Fred Allman, by mother and next friend, Mrs. E. W. Wallace, against the Gulf & Ship Island Railroad Company and another. From a decree dismissing the bill, plaintiff appeals. Affirmed.

Affirmed.

H. C. Holden and Davis & Conner, for appellant.

The testimony as to prior hopping of trains was incompetent, highly prejudicial, and should have been excluded. This identical question was raised in the case of Ala. & Vicksburg Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674. The court said that "such evidence, under all the authorities, is not admissible." Among the multitude of cases which might be cited to sustain the correctness of the ruling of the court and the contention of the appellants in this case, are the following: Totarella v. 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. 62; Chaise v. Maine, 77 Me. 62; Barrows v. Triever, 21 Md. 320; Aiken v. Holyoke, 184 Mass. 269; Geggenheim v. Lake Shore, etc., 66 Mich. 150; 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; 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 Tex. 380; Barker v. Savage, 3 N.Y. Ct. (1 Sweeny) 288. See also 10 R. C. L. 955, par. 127. A few courts have adopted the rule of admitting, in the absence of more direct proof, evidence bearing on the habits of a person on approaching railroad crossings, Lyman v. R. R. Co., 66 N.H. 200, 20 A. 976; Smith v. R. R. Co., 70 N.H. 53, 47 A. 290; Frederickson v. R. R. Co., 156 Ia. 26, N.W. 12; Chicago, etc., R. R. Co. v. Wilson, 225 Ill. 50, 80 N.E. 56. But the majority of the courts hold that such evidence is inadmissible, the objections being that it is too remote in that a man may be generally careful in doing a particular thing and still be careless in the instance in question. Chase v. R. R. Co., 77 Me. 62, 52 Am. Rep. 744; Zucker v. Whitridge, 205 N.Y. 50, 98 N.E. 209. See Anno. Cas. 1915B, 226, 22 C. J. 844, par. 835, citing numerous cases. Mo., etc., R. R. Co. v. Parrott (Tex.), 94 S.W. 1135, 96 S.W. 950. Especially is such evidence inadmissible when direct evidence is or can be produced or the act is otherwise fully proved. Chicago, etc., R. Co. v. Pearson (Ill.), 56 N.E. 633; Cleveland, etc., R. Co. v. Morse, 89 Ill.App. 1; Atchison, etc., R. Co. v. Gants (Kans.), 17 P. 54; Hampson v. Taylor (R. I.), 8 A. 331; 23 A. 732; Bedenbaugh v. R. R. Co. (S. C.), 48 S.E. 53; Gulf, etc., R. Co. v. Hamilton (Tex.), 42 S.W. 358; State v. Fitchelle (Minn.), 92 N.W. 527. Some courts permit evidence showing the habits of the injured or deceased person where this is the only fact obtainable which is relevant to the point or where the evidence is conflicting. Cox v. Chicago, etc., R. Co., 92 Ill.App. 15; Davis v. R. Co. (N. H.), 44 A. 388. In the following cases, where there was direct evidence, evidence of the character indicated was held inadmissible to prove negligence or lack of care: Birmingham R. Light & P. Co. v. Selhorst, 165 Ala. 475, 51 So. 568; Atlanta & W. P. R. Co. v. Johnson, 66 Ga. 259; East Tennessee, V. & G. R. Co. v. Kane, 92 Ga. 187, 22 L. R. A. 315, 18 S.E. 18; Atlanta & W. P. R. Co. v. Smith, 94 Ga. 110, 20 S.E. 763; Linck v. Scheffel, 32 Ill.App. 17; Salem v. Webster, 192 Ill. 369, 61 N.E. 323; Belknap & D. Stone Co. v. Harris, 13 Ky. L. Rep. 682; Louisville & N. R. Co. v. Chism, 20 Ky. L. Rep., 584 S.W. 251; Lexington R. Co. v. Herring, 29 Ky. L. Rep. 794, 96 S.W. 558; Louisville & N. R. Co. v. Taylor, 31 Ky. L. Rep. 1142, 104 S.W. 776; Aiken v. Holyoke Street R. Co., 184 Mass. 269, 68 N.E. 238; Kaillen v. Northwestern Bedding Co., 46 Minn. 187, 48 N.W. 779; Eppendorf v. Brooklyn City & N. R. Co., 69 N.Y. 195, 25 Am. Rep. 171; Smith v. Grand Street P. P. & F. R. Co., 11 Abb. (N. C.), 62; Baker v. Irish, 172 Pa. 528, 33 A. 558; Mayton v. Sonnefield, 48 S.W. 608; Propsom v. Leatham, 80 Wis. 608, 50 N.W. 586; International & G. N. R. Co. v. Ives, 41 Tex. Civ. App. 272, 71 S.W. 772; McCarragher v. Rogers, 120 N.Y. 526, 24 N.E. 812; Missouri, K. & T. R. Co. v. Johnson, 92 Tex. 380, 48 S.W. 568. In the following cases evidence of habit or custom was inadmissible for the purpose of proving negligence on the ground that it affirmatively appeared that the accident in question was not the result of such habit: Georgia Midland & G. R. Co. v. Evans, 87 Ga. 673, 13 S.E. 580; Maysville & B. S. R. Co. v. Willis, 31 Ky. L. Rep. 1249, 104 S.W. 1016; Central R. & Bkg. Co. v. Ryles, 84 Ga. 420, 11 S.E. 499; Hill v. Snyder, 44 Mich. 318, 6 N.W. 674; St. Louis, I. M. & S. R. Co. v. Sparks, 81 Ark. 187, 99 S.W. 73; Louisville & N R. Co v. Berry, 88 Ky. 222, 21 Am. St. Rep. 329, 10 S.W. 472. The court will note that in the instant case there was direct evidence of how the complainant was injured. The complainant's brother, Henry Allman, was an eyewitness and corroborated the complainant's own testimony. According to the testimony of these two boys, the complainant was not trying to hop the train, and therefore any evidence about his hopping trains on previous occasions was wholly incompetent, irrelevant and immaterial and should have been excluded. Not even in cases where there is no direct evidence do the courts always admit evidence of habit or conduct on previous occasions on the issue of negligence. See Morris v. East Haven, 41 Conn. 252; Frounfelker v. R. R. Co., 62 N.Y.S. 840; Swift & Co. v. Zerwich, 88 Ill.App. 558; Gray v. Chicago, etc., R. Co. (Ia.), 121 N.W. 1097; Erb v. Popritz (Kans.), 52 P. 871; Baltimore, etc., R. Co. v. State (Md.), 69 A. 439; Chase v. Maine, etc., R. Co. (Me.), 52 Am. Rep. 644; Parsons v. Syracuse, etc., R. Co., 117 N.Y.S. 1058; Mansfield Coal & Coke Co. v. McEmery (Pa.), 36 Am. Rep. 662; L. & N. R. Co. v. McClish, 115 F. 268; Mulville v. Life Ins. Co. (Mont.), 47 P. 650; Wallis v. So. P. Co. (Calif.), 195 P. 408, 15 A. L. R. 117. In the annotation in 15 A. L. R. 117, there is a special paragraph dealing with evidence as to the habit of an injured plaintiff of boarding and jumping off moving cars. Every case cited in this paragraph holds that evidence of such a habit is inadmissible. We refer the court especially to the case of St. Louis., etc., R. Co. v. Sparks in which it was held, in an action for injury to a child by being struck by a car when attempting to cross railroad tracks, evidence is inadmissible that he had been in the habit of catching rides upon cars moving upon the track, as there was nothing to show that the injury grew out of such an attempt. This case is exactly on all fours with the case at bar. (Anno. page 135). In this annotation there is also cited the case of Thompson v. Y. & M. V. R. Co., 72 Miss. 715, 17 So. 229, where this court held that evidence of the habits of a boy in jumping on and off moving trains is admissible to show whether or not the conductor was negligent in ordering him to jump off of his train just as it had started and was moving slowly.

The court erred in refusing to remand the case for additional...