Burns v. Alabama & Vicksburg Railway Co.

• Decision Date: 07 December 1908
• Docket Number: 13,578
• Citation: 93 Miss. 816,47 So. 640
• Parties: MARY BURNS v. ALABAMA & VICKSBURG RAILWAY COMPANY
• Court: Mississippi Supreme Court

47 So. 640

93 Miss. 816

MARY BURNS v. ALABAMA & VICKSBURG RAILWAY COMPANY

No. 13,578

Supreme Court of Mississippi

December 7, 1908

FROM the circuit court of Warren county, HON. J. N. BUSH, Judge.

Mrs Burns, appellant, was plaintiff in the court below; the railway company, appellee, was defendant there. From a small judgment in plaintiff's favor, too small to be satisfactory to her, she appealed to the supreme court.

The declaration alleged that plaintiff went to Beechwood, flag station of defendant, to take a passenger train for Vicksburg, and that her companion had a lantern and stood on the track and flagged the train as it approached; that the train did not stop, but passed by, leaving plaintiff at the station without shelter and with no way of getting to Vicksburg. A storm came up, and before plaintiff could get to shelter she was caught in the rain, got wet, was made sick and suffered. On the trial of the case plaintiff's witnesses testified in substantiation of the allegations of her declaration. The engineer testified that he saw no signal although he was on the lookout, as he rarely ever passed Beechwood without stopping and could have seen the signal had one been given. On the first trial the court instructed the jury that plaintiff could not recover exemplary damages, and they returned a verdict of $ 1,000. On motion of defendant this verdict was set aside and a new trial granted. On the second trial practically the same case was made out. The court again granted defendant an instruction denying plaintiff's right to punitive damages. The jury on the second trial returned a verdict in plaintiff's favor for $ 75.

Appellant sought to reinstate the verdict rendered on the first trial and failing therein to obtain a new trial because of the instruction as to punitive damages.

Reversed and remanded.

N. Vick Robbins and Alexander & Alexander, for appellant.

It was error to set aside the first verdict and this court should reinstate it. The first trial was singularly free from reversible error. As between the two verdicts, based on the same testimony and practically the same instructions, the first we submit is more apt to be just and right, because the course of the examination, if nothing else, brought to the knowledge of the jury the fact that the case has been tried once before and the natural inference would be that the judge disapproved of the first verdict. However this may be, the first verdict should be reinstated unless the court can find that them was reversible error on the first trial.

It was obvious error to instruct as a matter of law that punitive damages were not recoverable. There was no middle ground in this case for defendant to occupy. There is no pretense that a signal might have been given and yet that the engineer or fireman did not see it. Each of them testified that he was looking and could have seen the signal if given. There is no pretense that either was engaged about the engine. The jury were left without any alternative but to believe plaintiff's witnesses or defendant's. If the jury had believed the engineer and fireman, they would necessarily have found that no signal was given, and this would involve a total rejection of plaintiff's testimony. On the other hand, the jury by accepting the testimony of plaintiff necessarily rejected that of defendant. Compensatory damages alone would be proper only if the jury believed that the engineer and fireman were not looking and that this was simple negligence, but this view would be supported neither by the testimony for plaintiff nor by that for defendant. As to this assignment of error the case is on all fours with that of Railroad Company v. White, 82 Miss. 120, and Railroad Company v. Hawkins, Ib. 209.

In Railroad Company v. Jamison, 63 Miss. 33, this exact question arose. The engineer testified that he was on the lookout and did not see the children on the track, but the court held under the evidence that the jury had the right to disbelieve him and find that he in fact did see them, and so in this case, the jury had the right to disbelieve the engineer and fireman, and evidently did disbelieve them. It will hardly be denied that if the engineer or fireman did see the signal and ignored it, defendant is liable for punitive damages. If then, it was a matter for the jury to determine whether or not the engineer and fireman did see the signal, it necessarily follows that if the jury find that they did see the signal, it was authorized to assess punitive damages.

McWillie & Thompson, for appellee.

Were the, judgment setting aside the first verdict before the...