Eastman, Gardiner & Co. v. Sumrall

Decision Date30 March 1931
Docket Number29221
Citation133 So. 212,160 Miss. 792
PartiesEASTMAN, GARDINER & CO. v. SUMRALL
CourtMississippi Supreme Court

Division A

1 RAILROADS.

Evidence held to present question for jury whether object protruded from log train and overturned automobile waiting for train to pass over crossing.

2. APPEAL AND ERROR.

Supreme Court on appeal from judgment in action for personal injuries will not pass upon weight of conflicting evidence.

3 RAILROADS.

Giving instruction on prima facie liability of railroad arising from proof of happening of crossing accident held error, where plaintiff's evidence showed circumstances surrounding accident (Code 1930, section 1580).

HON. J Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.

Action by Mrs. R. F. Sumrall against Eastman, Gardiner & Co. Judgment for the plaintiff, and the defendant appeals. Reversed, and cause remanded for a new trial.

Reversed and remanded.

T. J. Wills, of Hattiesburg, for appellant.

It was error to give instructions telling the jury that the burden rested upon the defendant to exonerate itself from negligence, and that if the facts be not proven and the attending circumstances of the accident remained doubtful, that the jury should find for the plaintiff.

The law, however, upon the proof that injury was inflicted by the train and cars running on tracks, presumes that it was done by the negligent operation of the train. If this court is to give to that presumption an evidentuary value, then it deprives the appellant of the due process of law in violation of the guarantees of the due process clause of the 14th Amendment to the Constitution of the United States. If the court is to give to the presumption no more than a rule of procedure, placing upon the defendant the duty of introducing some testimony and upon the introduction of some testimony in obedience to the burden of going forward as distinguished from the burden of proof, the presumption disappears, then the law is constitutional and this case because of the erroneous instructions must be reversed.

Daniell's case, 108 Miss. 583; Western and Atlantic Railroad Company v. Henderson, 279 U.S. 639; Brown case, 138 Miss. 39; Fondren case, 145 Miss. 679.

Rawls & Hathorn, of Columbia, for appellee.

The giving of the following instruction was not error.

"The court instructs the jury that the law is, that in all actions against railroad corporations, and other corporations using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agency of steam and running on tracks, for damage done to persons, proof of injury inflicted by the running of the engines, locomotives or cars of such railroad corporation or other corporation is prima facie evidence of want of reasonable skill and care of such railroad corporation or other corporation in reference to said injury."

J. & K. C. R. R. Co. v. Turnipseed, 55 L.Ed. 78; Railroad Co. v. Hicks, 91 Miss. 273.

If the jury are in doubt as to whether the facts have been disclosed, then, in that case the burden is on the railroad to make the facts appear.

Temple Case, 129 Miss. 6.

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. The law requires the facts to be produced, and if the facts are not produced in evidence, the presumption prevails.

G. M. & N. v. Brown, 138 Miss. 60.

Argued orally by T. J. Wills, for appellant and by C. V. Hathorn for appellee.

OPINION

McGowen, J.

The appellee, Mrs. R. F. Sumrall, filed her declaration against appellant, Eastman, Gardiner & Co., for personal injuries received by her at the intersection of a street and a railroad in Laurel, Mississippi, alleging that, at the time Eastman, Gardiner & Co. were operating a logging train on a line of railroad drawn by a locomotive propelled by steam.

The facts sufficient to understand the decision in this case will be stated briefly. Mrs. Sumrall and her husband, while sleeping at eleven thirty p. m., were awakened and advised that their grandchild was dying at a local hospital in Laurel, Mississippi, and at once started to the hospital in a Ford car, and it was necessary for them to cross the railroad at Fifteenth avenue. As they proceeded toward the railroad track on said avenue the grade was downward. When they were within seven hundred feet from the crossing, the husband, who was driving the car, heard the exhaust of an engine west of the crossing. They drove down this avenue at the rate of twenty to twenty-five...

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6 cases
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    • January 10, 1938
    ... ... I. C. R. Co., 33 So. 723; Ry. Co. v ... Eakin, 79 Miss. 735; I. C. R. Co. v. Sumrall, ... 96 Miss. 860; Miss. Cent. R. Co. v. Hanna, 98 Miss ... 609; G. M. & N. R. Co. v ... Adams Newell Lbr. Co., 151 Miss. 711; Gillespie v ... Doty, 160 Miss. 684; Eastman Gardner & Co. v ... Sumerall, 160 Miss. 792; Hartford Fire Ins. Co. v ... Williams, 165 ... ...
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    ...478; Ry. Co. v. Ray, 165 Miss. 885; Fraternal Aid v. Whitehead, 125 Miss. 153; Montgomery Ward v. Hutchison, 173 Miss. 701; Eastman Gardiner v. Sumrall, 160 Miss. 792; Co. v. Garrett, 161 So. 753; McL. & McA. v. Rogers, 169 Miss. 650; Kress & Co. v. Sharp, 156 Miss. 693; Stevens v. Locke, 1......
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    ... ... conflicting evidence ... Eastman ... Gardner & Co. v. Sumrall, 133 So. 212; ... Gillespie, v. Doty, 135 So. 211; Stevens v ... ...
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