Columbus & G. Ry. Co. v. Fondren

• Citation: 154 Miss. 40,121 So. 838
• Decision Date: 22 April 1929
• Docket Number: 27558
• Parties: COLUMBUS & G. RY. CO. v. FONDREN. [*]
• Court: United States State Supreme Court of Mississippi

121 So. 838

154 Miss. 40

COLUMBUS & G. RY. CO. v. FONDREN. ^[*]

No. 27558

Supreme Court of Mississippi

April 22, 1929

Division A

1 RAILROADS. Instruction authorizing inference of railroad's negligence in crossing collision, if jury could not determine how injury was inflicted, held not erroneous.

In action for damages for death of automobile passenger in collision with train at crossing, instruction authorizing application of inference of negligence against railroad in case of conflicting testimony preventing jury from determining how injury was inflicted held not erroneous.

2 RAILROADS. Instruction on condition of crossing over railroad track held not erroneous under evidence in crossing collision case.

In action for damages for death of automobile passenger in collision with train at crossing, instruction on condition of crossing held not erroneously given, in view of conflicting evidence relative thereto.

3 NEGLIGENCE. Guest in automobile held not charged with driver's negligence in failing to stop before going on railroad track.

Automobile guest riding in Ford coupé, with driver on one side of him and two men on the other side, held not, under circumstances charged with negligence of driver in failing to stop before going on railroad track after making right-angle turn within sixty feet of track.

4. RAILROADS. Guest in automobile could assume that driver would obey law and take reasonable precaution before crossing railroad track.

Guest in automobile had right to assume that driver making right-angle turn within sixty feet of railroad track would obey the law and take such precaution as was reasonable and prudent under the circumstances, before crossing track.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Oktibbeha county, HON. J. I. STURDIVANT, Judge.

Action by T. L. Fondren against the Columbus & Greenville Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

A. F. Gardner, Will E. Ward and Owen & Garnett, for appellant.

The first and second assignments of error relate to the two instructions on the prima-facie statute. Because that statute was meant to supply the absence of evidence; and not to elbow out of the case evidence properly there, we still respectfully insist that instruction No. 1 should not have been given. This case as decided on the former appeal, 145 Miss. 679, 110 So. 365, and the long line of decisions upon which the former holding was based, announced a rule which, if followed, would save to plaintiffs all the benefits they could rightfully claim under the statute, and at the same time put an end to the frequent reversals which have resulted, and will continue to result, from cunning efforts of counsel to twist that statute into serving a selfish purpose rather than the beneficent purpose that was in the minds of the legislators who originally enacted it.

But, if we are in error as to the first of these instructions, we insist that instruction No. 2 was vicious. Under that instruction there could never be a mistrial in a railroad case, no matter how honestly the jurors might disagree; and a railroad would thus be deprived of the equal right with other litigants to have a mistrial entered if the jury could not agree. If four jurors had stood for the plaintiff, and eight for railroad, the four for the plaintiff could have said to the eight for the railroad: "There is such a conflict of facts and theories between the testimony of plaintiff and the testimony of defendant as to prevent us from being able to agree with you as to how the injury was inflicted, and, therefore, under these instructions 1 and 2 it is the duty of you eight gentlemen to join us in returning a verdict for plaintiff, based upon the statutory inference of negligence." Again, the second instruction gave the jury an open door by which they could avoid their primary duty to determine the weight of the testimony and the credibility of the witnesses, and return a verdict based upon the presumption. Where there is such a conflict of facts and theories between the testimony of the parties as to prevent you from being able to determine how the injury was inflicted, you may avoid the mental effort and wrangling discussion necessary to decide this matter, and by virtue of the statute you may grab a luscious bunch of the defendant's earnings and pass it over to the plaintiff as a reward for his stupid carelessness; the instruction might as well have said as much to the jury. That instruction meant that unless the testimony for the defendant was so clear and so overwhelming as to exonerate or exculpate the defendant from blame the presumption must prevail. The statute was not intended to have such evil potency. There was no scarcity of evidence. The thing was done in the garish light of day, and three occupants of the car, and a large number of eyewitnesses, employee and non-employee, testified as to how and why it happened. No occupant of the car was killed. What excuse could a jury have for saying that they couldn't tell how the accident happened, and therefore, they would resort to the presumption? If all the facts and circumstances attendant upon the injury were not before the jury, then what would it take, or what would be necessary, to get before the jury such a state of facts and circumstances as would eliminate the presumption and put up to the jury the duty of deciding the case upon the weight of the testimony and the credibility of the witnesses? It was a case in which the jurors were under the duty to believe or disbelieve from the evidence, and any resort to the presumption was a manifest shirking of their sworn duty.

In Y. & M. V. R. Co. v. Gore, 151 Miss. 145, 117 So. 521, recently decided, this court condemned two instructions on the prima-facie statute, one of which told the jury: ". . . and further, if there is a conflict in the evidence as to the facts and circumstances under which the injury was inflicted, and the jury is unable to determine for any reason whether such injury was the result of the negligence of the defendant's employees or not, than it cannot be said that such facts and circumstances are known in a legal sense and such prima-facie evidence of negligence on the part of such employees, remains in effect an inference of such negligence may be drawn from the infliction of such injury, and should determine the defendant's liability in this case." That instruction meant exactly what the cracker to instruction No. 2 in the case at bar meant, and it was held a violation of the rule laid down in Davis v. Temple, 129 Miss. 6, 91 So. 689, and Hines v. McCullers, 121 Miss. 666, 83 So. 734.

In G., M. & N. R. Co. v. Brown, 138 Miss. 39, 102 So. 855, 859, this court speaking through Justice ETHRIDGE, said: "This court said it was improper to invoke the prima-facie statute as was done in the instruction there condemned, because, 'It has often been held by this court that where the facts are in evidence, the jury must determine the negligence or lack of negligence from the evidence and not from the statute.'" In Davis v. Temple, 129 Miss. 6, 91 So. 689, quoted in the Gore case, before cited, this court said: "But the statute was not designed to free the jury from the duty of deciding the conflicting evidence as to what the real facts are, but such conflicts of evidence must be determined by the jury as any other conflict of fact . . . The jury has no arbitrary right to disregard the proof and render a verdict under the statute. The witnesses, in the absence of impeachment or contradiction, are presumed to speak the truth, and it is the duty of the jury to consider and give credence to evidence where it is not contradicted, where the witness is not impeached, or where it is not inherently improbable. Where the defendant's version of the facts is disputed by the plaintiff, then the duty devolves upon the jury to determine the truthfulness of the testimony. They cannot sidestep this duty by invoking the statute in such case."

In G., M. & N. R. Co. v. Arrington (Miss.), 107 So. 378, this court, through Justice HOLDEN, reversed the case because of the giving of an instruction of the prima-facie statute. The justice said: "This instruction ought not to have been given because the testimony in the case sufficiently explains every material fact connected with the infliction of the injury, and clearly shows how the injury occurred; therefore, it was error to tell the jury that 'the burden is upon the defendant to exculpate itself from any and all negligence.' . . . But we shall say just one more thing in connection with this statute, and that is, that after it has served its purpose in the trial by compelling the railroad to explain how the injury occurred then the question of negligence or not is to be decided from the facts in the case."

In Davis v. Ellzey, 126 Miss. 789, 88 So. 630, 633, cited in the Gore case, this court affirmed the judgment of the trial court "because the railroad company was liable on the undisputed evidence," but an instruction of the prima-facie statute was held not to be a correct statement of law because it told the jury: ". . . if you are satisfied by the preponderance of the evidence that the plaintiff was injured by the running of the train of defendant, but are in doubt as to the facts and circumstances attending the injury the defendant will be presumed to have been guilty of negligence and you will find for the plaintiff."

In Hines v. McCullers, 121 Miss. 666, 83 So. 734, cited in the Gore case, this court, through the Chief Justice, said "On the contrary, when the facts and circumstances have been proven, or have been found by the jury when the evidence relating thereto is conflicting, the presumption of negligence...