Edward Hines Yellow Pine Trustees v. Holley

• Decision Date: 01 February 1926
• Docket Number: 25385
• Citation: 106 So. 822,142 Miss. 241
• Court: Mississippi Supreme Court
• Parties: EDWARD HINES YELLOW PINE TRUSTEES et al. v. HOLLEY. [*]

106 So. 822

142 Miss. 241

EDWARD HINES YELLOW PINE TRUSTEES et al. v. HOLLEY. ^[*]

No. 25385

Supreme Court of Mississippi

February 1, 1926

Division A

1 RAILROADS. Case held for jury on theory of gross negligence as to pedestrian on track.

Admissions of engineer and testimony of person struck by train while walking on railroad held, in action for his injury sufficient to warrant submission of case to jury on theory of gross negligence in not preventing accident.

2 NEGLIGENCE. Damages reduced because of contributory negligence.

Verdict of ten thousand dollars in action on the theory of gross negligence for injury to man sixty-two years of age, struck by engine while walking on track, reduced by half, as proper proportion attributable to his contributory negligence.

HON. J. Q. LANGSTON, Judge.

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

Action by S. C. Holley against the Edward Hines Yellow Pine Trustees and others. Judgment for plaintiff, and defendants appeal. Affirmed, with remittitur.

Cause affirmed.

H. C. Holden and T. J. Wills, for appellants.

I. The peremptory instruction requested by the defendants should have been granted. The appellee was a trespasser on the railroad track of the appellants and his injuries were due entirely to his own negligence, and he should not have been permitted to recover damages. The only duty owed to him by the employees on the train of the appellants was to refrain from willfully or wantonly injuring him if he was seen in a place of peril and unaware of his situation. The evidence shows beyond dispute that the employees of the appellant did all in their power to avoid the injury after they saw the peril in which the appellee had placed himself by getting off the track and then getting back on the end of the cross-ties.

This case is controlled by the following parallel cases from this court: R. R. Co. v. Stroud, 64 Miss. 784, 2 So. 171; R. R. Co. v. Bourgeois, 66 Miss. 3, 5 So. 629; Dooley v. R. R. Co., 69 Miss. 648, 12 So. 956; R. R. Co. v. Lee, 71 Miss. 895, 16 So. 349; R. R. Co. v. Roberts, 23 So. 393; R. R. Co. v. Arnola, 78 Miss. 787, 29 So. 768; Dyche v. R. R. Co., 79 Miss. 361, 30 So. 711; Turner v. R. R. Co., 33 So. 283; Nichols v. R. R. Co., 83 Miss. 126; R. R. Co. v. Jones, 82 Miss. 710, 35 So. 193; Sledge v. R. R. Co., 87 Miss. 566, 40 So. 13; McKenna v. R. R. Co., 87 Miss. 652; R. R. Co. v. Ruff, 95 Miss. 165, 48 So. 184; R. R. Co. v. Latiker, 98 Miss. 451, 53 So. 955; Collins v. R. R. Co., 77 Miss. 855, 27 So. 837; Strong v. R. R. Co., 65 Miss. 3, 3 So. 465; Korter v. R. R. Co., 87 Miss. 482, 40 So. 258; Murdock v. R. R. Co., 77 Miss. 487, 29 So. 25; R. R. Co. v. McCoy, 105 Miss. 737, 63 So. 221; R. R. Co. v. Cooper, 68 Miss. 368, 8 So. 747; Billingsley v. R. R. Co., 100 Miss. 612, 56 So. 790; R. R. Co. v. Smith, 111 Miss. 471, 71 So. 752; R. R. Co. v. Huff, 111 Miss. 486, 71 So. 757; R. R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954; Hubbard v. R. R. Co., 120 Miss. 834, 83 So. 247; R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; R. R. Co. v. Ash, 128 Miss. 410, 91 So. 31; R. R. Co. v. Cox, 132 Miss. 564, 97 So. 7. See also Connally v. L. & N. R. R. Co., 4 F. (2nd Series) 539; Schmidt v. R. R. Co., 191 Mo. 215, 90 S.W. 136, 3 L. R. A. (N. S.) 196; Neal v. R. R. Co., 126 N.C. 634, 36 S.E. 117; 22 R. C. L. 1935, par. 181; R. R. Co. v. Anderson, 31 Am. Rep. (Va.) 750.

Taking the testimony of Holley himself and his own witnesses, we submit that their evidence shows that the injury was entirely due to the fault of the plaintiff. There could not be a case of greater negligence and total disregard of personal safety than was shown by Holley according to the plaintiff's witnesses, regardless of the testimony of the defendants.

II. The damages allowed are excessive. The jury awarded the plaintiff damages in the sum of ten thousand dollars which, we submit, is beyond all reason. The verdict is excessive because the injuries sustained by the plaintiff were not sufficient to justify so large an amount. The record shows that plaintiff suffered the fracture of several ribs on one side and was considerably bruised. After he had been taken to the hospital, he contracted pneumonia, but the evidence is not sufficient to show that the pneumonia was caused by the injury. The only work that he did before the injury was to help his wife run a boarding house by doing the chores. We submit that this court will take judicial knowledge of the fact that boarding houses are very rarely run by men, and that it is usually the women who do the work. The plaintiff was sixty-two years of age at the time of the injury and according to his own testimony his earning power was not very great. His life expectancy is only a few years. R. R. Co. v. Lane, 46 So. 959; R. R. Co. v. Price, 72 Miss. 862, 18 So. 514; R. R. Co. v. Beatie, 95 Miss. 543, 49 So. 609; Sea Food Co. v. Alves, 117 Miss. 1, 77 So. 857; Carver v. Jackson, 82 Miss. 583, 35 So. 157; Dominic v. Coal Co. (Mo.), 164 S.W. 567; R. R. Co. v. Webster (Fla.), 5 So. 714; Fry v. R. R. Co. (Minn.), 103 N.W. 733; Marriott v. R. R. Co. (Mo.), 126 S.W. 231; R. R. Co. v. Williams, 114 Miss. 236, 74 So. 835; R. R. Co. v. Garnett, 129 Miss. 795, 93 So. 241.

The verdict should be reduced at least fifty per cent because the plaintiff failed to show injuries sufficiently serious to justify so large a verdict and because it is evident that the jury failed to diminish the damages in proper proportion to the gross negligence of the plaintiff.

J. W. Cassidy and Currie & Currie, for appellee.

I. Under the statute of this state a peremptory instruction could not be granted. Section 2, chapter 135, Laws of 1910, provides: "All questions of negligence and contributory negligence shall be for the jury to determine." The appellants submitted their case to the jury on instructions requested by them and granted by the court. See Y. & M. V. R. R. Co. v. Carrol et al., 60 So. 1013.

II. Under the decisions of this court establishing the rule under which a peremptory instruction may be granted is the case of Wise v. Peugh, 106 So. 81, where the court held: "When peremptory instruction is granted against plaintiff, his testimony must be given full weight with reference to the facts and circumstances and the reasonable inferences to be drawn therefrom." This rule, of course, applies to the testimony of the witnesses for the plaintiff and all reasonable inferences which may be drawn from their testimony. It is manifest that giving full weight to the testimony of Holley and his witnesses and to all of the reasonable inferences to be drawn therefrom, that a case of liability was established against the appellants and a peremptory instruction could not be granted. Brenard Mfg. Co., v. Baird, 106 So. 82. See also A. & V. Ry. Co. v. Kelly, 88 So. 707; N. O. M. & C. R. Co. v. Harrison et al., 61 So. 655; R. R. Co. v. Hawkins, 82 Miss. 211; Jamison v. I. C. R. R. Co., 63 Miss. 33; G. & S. I. R. R. Co. v. Boone, 82 So. 335; Bell v. So. R. R. Co., 30 So. 821; Laurel Mercantile Co. v. Mobile & Chicago R. Co., 87 Miss. 675; Isabelle v. I. C. R. R. Co., 25 So. 1037; Potera v. City of Brookhaven, 95 Miss. 774; Westbrook v. M. & O. R. R. Co., 66 Miss. 560; R. R. Co. v. Harrison, 105 Miss. 18; R. R. Co. v. Hawkins, 82 Miss. 209; N. O. & N. R. R. Co. v. Jackson, 105 So. 770; Rauber v. Sundback, 1 S.D. 268, 46 N.W. 927; Union P. R. Co. v. James, 12 U.S. App. 482, 56 F. 1001; 6 C. C. A. 217; Mt. Adams & E. P. Inclined Ry. Co. v. Lowrey, 74 F. 463.

There were clean-cut issues of fact in this case, both sides of which were supported by positive and direct testimony and the case on the whole merits and all of the issues of fact therein was properly submitted to the jury on instructions far more favorable to the appellants than they were entitled to receive; and the verdict of the jury is supported by the weight of the evidence; and a peremptory instruction was impossible under the law.

III. The verdict was not excessive. Holley was only sixty-two years old. Before his injuries he was a hale, hearty man. He was earning at the time one hundred dollars per month over and above his expenses. He was struck a powerful and violent blow in the back by the train. Five or six of his ribs were broken. His shoulder was badly injured. He was injured in the head. He lay in the hospital for seven weeks and suffered the agonies of death both day and night. He was unconscious for five weeks, did not even know his own children, was unconscious of the fact that they visited him. He was emaciated. His arm and shoulder and side so completely disabled that he could not at the time of his trial wait on himself. He still suffers the most excruciating pain. He was utterly incapacitated to do any sort or work. He was an object of charity, living with his children. The jury saw him. They listened to his testimony. They observed his actions and movements in the court. They saw the marks of injury, pain and suffering upon him. It was the exclusive province of the jury to assess his damages. The record is clean. There is in it no mark or evidence of partiality, prejudice, bias, fraud or corruption. It is free from all taint, and we submit, is amply justified by the testimony. It is not unreasonable. It is not excessive.

Argued orally by H. C. Holden, for the appellants, and J. W. Cassidy, for the appellee.

OPINION

COOK, J.

The appellee instituted suit in the circuit court of Pearl River county against the appellants for personal injuries sustained by him by reason of the alleged negligence of appellants. The jury returned a verdict in favor of the plaintiff for ten thousand dollars, and from the judgment entered in pursuance thereof this appeal was prosecuted.

The...