Columbus & G. Ry. Co. v. Robinson, 34134

CourtMississippi Supreme Court
Writing for the CourtMcGehee, J.
Citation198 So. 749,189 Miss. 675
Decision Date25 November 1940
Docket Number34134
PartiesCOLUMBUS & G. RY. Co. et al. v. ROBINSON et al

198 So. 749

189 Miss. 675

COLUMBUS & G. RY. Co. et al.
v.
ROBINSON et al

No. 34134

Supreme Court of Mississippi

November 25, 1940


APPEAL from the circuit court of Webster county, HON. J. E. ALLEN, Judge.

Action by Dan Robinson and others against the Columbus & Greenville Railway Company, the Standard Oil Company of Kentucky, Incorporated, and another for the death of Robert Robinson, deceased. From a judgment for plaintiffs, the named defendants appeal. Judgment reversed, and cause remanded as to the Columbus & Greenville Railway Company, and judgment reversed and judgment directed to be entered for the Standard Oil Company of Kentucky, Incorporated.

Reversed and remanded as to railway company; reversed and judgment here for appellant.

Owen & Garnett, of Columbus, and R. C. Stovall, of Okolona, for appellant, Columbus & Greenville Railway Company.

The court erred in refusing to grant a peremptory instruction as to this defendant.

Ordinarily, persons charged with duty, if they testify, are trying to tell the truth, and are more to be depended on than those persons who are not charged with any duty in reference to the matter. As against this assumption we are met with the counter fact that ordinarily a man seeks to justify his own act, or to deny negligence; but where such witnesses are supported by corroborating affirmative testimony of other disinterested witnesses, and the only testimony in opposition is the negative testimony of persons who did not hear the whistle or the bell, their attention being elsewhere, such negative testimony is insufficient to overturn affirmative testimony.

Y. & M. V. R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Weiss v. Central R. Co., 69 A. 1087; Culhane v. N.Y.C. R. Co., 60 N.Y. 133, 137; Keiser v. Lehigh Valley R. Co., 61 A. 903; Urias v. Penn. R. Co., 25 A. 256; Lonzer v. Lehigh Valley R. R. Co., 46 A. 937; Horandt v. Central R. Co., 73 A. 93; Foley v. N.Y.C. R. Co., 90 N.E. 1116; Banister v. R. Co. (Iowa), 202 N.W. 766; Longley v. McGroch (Md.), 80 A. 844; Long v. McCabe (Wash.), 100 P. 1016; Reed v. Flynn (Ky.), 266 S.W. 644; Hank v. Peoria Ry. Co., 154 Ill.App. 473; C. & R. I. R. Co. v. Still, 19 Ill. 499.

Mr. Hester was familiar with his surroundings; he knew the crossing was there; and a stop-law sign board on the righthand side of the road could have told him no more than he already knew. In that situation the absence of a stop-law sign could not have been a proximate cause of the accident, and there was not a scintilla of evidence to warrant the jury in so finding.

I. C. R. Co. v. Wright, 135 Miss. 435, 100 So. 1; Kramer Service Co. v. Wilkins, 184 Miss. 483, 186 So. 625; 45 C. J. 904.

It is a maxim that the law looks to the proximate, and not at the remote, causes of an injury. Out of the application of this maxim grows the liability or non-liability of a defendant charged with the infliction of an injury by his negligence. Unless the alleged negligence of the defendant was the proximate cause of the injury of which plaintiff complains, there can be no recovery. For consequences of which his act or omission was only a mere condition or remote cause the defendant is not liable. To constitute actionable negligence, there must be not only a causal connection between the negligence complained of and the injury suffered, but the connection must be a natural and continuous sequence, unbroken by any other cause.

L. & N. R. Co. v. Nolan (Ind.), 34 N.E. 710, 712; 45 C. J. 1318.

After telling the jury that they were the sole judges of the weight of the testimony and the credibility of the witnesses, and that they should take into consideration a witness's pecuniary interest, if shown, and his opportunities for knowing the truth of the matters testified about, the instruction included this cracker to make it pop like a bullwhip: ". . . and if you believe from the evidence that any witness in this case is mistaken about any material fact as to which he or she may have testified, or that any witness has wilfully and corruptly sworn falsely to any material fact, you have the right and it is your duty to disregard the entire testimony of such witness provided you believe such testimony to be untrue." We take it to be quite elementary that a jury may disregard the entire testimony of a witness if they believe his entire testimony to be untrue; but merely because he was mistaken as to one of a group of facts would not justify a throwing out of his entire testimony. If it meant no more than that they could disregard the entire testimony of a witness if they believed his entire testimony to be untrue, then why were the words, "if you believe any witness in this case is mistaken about any material fact as to which he or she may have testified, " put in the instruction? They had no place in the instruction and could only breed confusion by leading the jury to understand that if they believed any witness was "mistaken about any material fact, " it was their right and duty to throw out all of his testimony.

It was a vicious instruction, not justified by the evidence, included confusing matter, and, as said in Corpus Juris, it was "calculated to intimate that in the opinion of the court some of the witnesses had testified falsely." This court has time and again said that the wrongful granting of this form of instruction will alone warrant a reversal of judgment.

Farley v. Smith, 158 Miss. 404, 130 So. 478; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; McClure v. State (Miss.), 128 So. 764, 766; Railroad Co. v. McCoy, 85 Miss. 391, 37 So. 706; Wood v. State, 174 Miss. 499, 165 So. 123; Shelton v. State, 126 So. 390, 395; Pickwick Greyhound Lines, Inc., v. Johnson, 160 Miss. 470, 134 So. 566; Sardis & D. R. Co. v. McCoy, 85 Miss. 391, 37 So. 706; Perkins v. Knisely, 68 N.E. 486; Felton v. U.S. 24 L.Ed. 875, 876; Hiatt v. Tomlinson, 158 N.W. 383, 384; O.-W. Ry. Nav. Co. v. U.S. 205 F. 337, 339; U.S. v. Strickrath, 342 F. 151; Ragansky v. U.S. 253 F. 643, 645; U.S. v. So. Ry. Co., 1 F.2d 607; Gibbs v. Hanchette, 51 N.W. 691; 64 C. J. 613, sec. 551.

A person occupying a vehicle driven by another over whom he has no control may be required to do something for his own safety and protection, such as to give seasonable warning or remonstrance against assuming the danger which is apparent. Such person is not under the same duty nor charged with the same degree of care as a person driving the automobile or other vehicle, and where the person driving the automobile or other vehicle is a safe and prudent and careful driver, the vigilance of the occupant of such automobile or other vehicle is considerably relaxed, and he may assume that the driver will take such precaution as is reasonable and prudent under the circumstances. But if such occupant of an automobile discovers danger or sees that the driver is taking a dangerous risk or needless exposure, he should caution and remonstrate with the driver and give warning of the danger which the driver has overlooked or has not observed.

C. & G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817; Y. & M. V. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; G. M. & N. R. Co. v. Brown, 138 Miss. 39.

The instruction should have been modified to the extent of making Robert Robinson accountable for the way the truck was being driven to the extent that he may have known of it and acquiesced in it.

The witness Hightower, for plaintiffs, was town marshal of Itta Bena at the time of the accident, and a deputy sheriff at the time of the trial. Allowing him to testify that the crossing in question "was a dangerous crossing at that time, " was highly prejudicial. He was evidently introduced as an expert on crossings, but we don't think he should have been allowed to express an opinion, as his official position, while not qualifying him to know any more about crossings than anybody else, may have given his words weight with the jury. The big idea was to make it appear that the situation at that crossing made it incumbent upon the Railway to take extraordinary precautions in moving cars over it.

As bearing upon the acts and conduct of the parties and the cause of the injury it is competent to show the nature and surroundings of the place of the injury. But a witness cannot give his mere conclusion as to the danger or difficulty involved in crossing the track at that point.

10 Encyc. of Evidence 502; S. F. & W. Ry. Co. v. Evans, 49 S.E. 308; Railroad Co. v. Spencer, 72 Miss. 491, 17 So. 168; Grace v. G. & C. R. Co., 25 So. 875; City of Anniston v. Ivey, 44 So. 48, 50; A. G. S. R. Co. v. Flinn, 74 So. 246; L. & N. R. Co. v. Moorer, 70 So. 277.

Green & Green and Forrest B. Jackson, all of Jackson, for appellant, Standard Oil Company Incorporated in Kentucky.

W. C. Hester, under the facts of this case, is an independent contractor.

Restatement of the Law of Agency, sec. 220, and Mississippi Anotations, p. 66; Callahan Const. Co. v. Rayburn, 110 Miss. 107, 69 So. 669; N. O., etc., R. R. Co. v. Rayburn, 110 Miss. 107, 69 So. 669; N. O., etc., R. R. Co. v. Reese, 61 Miss. 581; N. O., etc., R. R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Louis-Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Crosby Lbr. & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 287; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298, 300; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315, 316; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; 39 C. J. 1315, sec. 1517; 19 A. L. R. 231.

There is no testimony to support the allegations of appellees that Hester was an employee of the Standard Oil Company, and as stated in Crosby Lumber & Manufacturing Co. et al. v. Durham, 179 So. 285, 181 Miss. 595, where there is no evidence...

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7 practice notes
  • Hollingsworth v. Bovaird Supply Co., No. 55154
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1985
    ...51 So.2d 443 (1951); Standard Oil Company v. Crain, 199 Miss. 69, 23 So.2d 297 (1945); Columbus and Greenville Railway Co. v. Robinson, 189 Miss. 675, 198 So. 749 In Hagan Storm Fence Co. v. Edwards, 245 Miss. 487, 148 So.2d 693 (1963), there was a two-car intersection collision in which dr......
  • Ferrill v. State, No. 91-KA-00767
    • United States
    • United States State Supreme Court of Mississippi
    • September 22, 1994
    ...of "falsus in uno". Metropolitan Life Insurance Company v. Wright, 190 Miss. 53, 199 So. 289; Columbus & G. Ry. Co. v. Robinson, 189 Miss. 675, 198 So. 749; M. & A. Motor Freight Lines v. Villere, 190 Miss. 848, 1 So.2d Id. 13 So.2d at 925. The majority relies on the recent case of McGee v.......
  • Shofner v. Illinois Central Railroad Company, No. G-C-30-60.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • October 28, 1960
    ...Co. v. Addkison, supra; New Orleans & N. E. R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825, 826; Columbus & Greenville R. Co. v. Robinson, 189 Miss. 675, 198 So. 749. In the Burge case, the Court "* * * It is not enough in any case merely that the defendant was negligent. The failure to ring t......
  • Miller by Miller v. Stiglet, Inc., No. 57374
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...51 So.2d 443 (1951); Standard Oil Company v. Crain, 199 Miss. 69, 23 So.2d 297 (1945); Columbus and Greenville Railway Co. v. Robinson, 189 Miss. 675, 198 So. 749 Further, Hollingsworth noted that a majority of American jurisdictions now permit the use of expert accident reconstruction opin......
  • Request a trial to view additional results
7 cases
  • Hollingsworth v. Bovaird Supply Co., No. 55154
    • United States
    • United States State Supreme Court of Mississippi
    • February 27, 1985
    ...51 So.2d 443 (1951); Standard Oil Company v. Crain, 199 Miss. 69, 23 So.2d 297 (1945); Columbus and Greenville Railway Co. v. Robinson, 189 Miss. 675, 198 So. 749 In Hagan Storm Fence Co. v. Edwards, 245 Miss. 487, 148 So.2d 693 (1963), there was a two-car intersection collision in which dr......
  • Ferrill v. State, No. 91-KA-00767
    • United States
    • United States State Supreme Court of Mississippi
    • September 22, 1994
    ...of "falsus in uno". Metropolitan Life Insurance Company v. Wright, 190 Miss. 53, 199 So. 289; Columbus & G. Ry. Co. v. Robinson, 189 Miss. 675, 198 So. 749; M. & A. Motor Freight Lines v. Villere, 190 Miss. 848, 1 So.2d Id. 13 So.2d at 925. The majority relies on the recent case of McGee v.......
  • Shofner v. Illinois Central Railroad Company, No. G-C-30-60.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • October 28, 1960
    ...Co. v. Addkison, supra; New Orleans & N. E. R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825, 826; Columbus & Greenville R. Co. v. Robinson, 189 Miss. 675, 198 So. 749. In the Burge case, the Court "* * * It is not enough in any case merely that the defendant was negligent. The failure to ring t......
  • Miller by Miller v. Stiglet, Inc., No. 57374
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...51 So.2d 443 (1951); Standard Oil Company v. Crain, 199 Miss. 69, 23 So.2d 297 (1945); Columbus and Greenville Railway Co. v. Robinson, 189 Miss. 675, 198 So. 749 Further, Hollingsworth noted that a majority of American jurisdictions now permit the use of expert accident reconstruction opin......
  • Request a trial to view additional results

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