Flynn v. Kurn

Decision Date31 October 1938
Docket Number33244
Citation184 So. 160,183 Miss. 413
CourtMississippi Supreme Court
PartiesFLYNN v. KURN et al

(Division A.)

1 RAILROADS.

In automobile occupant's action against railroad for injuries sustained in collision at night between train and automobile, where evidence was conflicting, question whether railroad failed to give signals required by statute, was for jury (Code 1930, sec. 6125).

2. APPEAL AND ERROR.

In automobile occupant's action against railroad for injuries sustained in collision between train and automobile on appeal by occupant from an allegedly inadequate verdict for occupant cross-appeal of railroad to effect that verdict was against weight of evidence could not be considered where railroad had failed to make a motion for new trial in trial court.

3 RAILROADS.

In automobile occupant's action against railroad for injuries sustained in collision at night between train and automobile at unobstructed crossing within limits of a village but beyond six-mile limit fixed by Railroad Commission, evdence was insufficient for jury on question whether railroad negligently operated train at excessive speed.

4 DAMAGES.

In automobile occupant's action against railroad for injuries sustained when train collided with automobile, question of extent of injuries was for jury.

5. NEGLIGENCE.

Where automobile owner was injured in collision between train and automobile when automobile was being driven by driver with permission, and in interest, of owner, who was seated beside driver, gross negligence of driver in driving onto track without stopping, looking or listening was imputable to owner, since driver was gratuitous "servant" or "agent" of owner.

6. NEGLIGENCE.

Where automobile owner was injured in collision between train and automobile while automobile was being driven by driver with permission, and in interest, of owner who was seated beside driver, rule that "guest" is bound only after seeing danger to remonstrate with driver, was inapplicable to avoid imputation to owner of negligence of driver in driving upon track without stopping, looking or listening, since rule is applicable to guest only.

7. TRIAL.

In automobile occupant's action for injuries sustained in collision between automobile and train, where doctors testifying for occupant and railroad made X-ray picture of occupant relative to which conflicting testimony was offered, excluding occupant's evidence relative to another X-ray made by occupant's doctor and a third doctor after occupant had rested his case, on ground that such evidence was cumulative evidence in chief and not rebuttal evidence to testimony of railroad's doctor in regard to occupant's alleged injury and first X-ray thereof, was not error.

8. TRIAL.

The order of judicial investigation including the time and manner of introducing evidence is committed to discreton of trial judge.

9. APPEAL AND ERROR.

Appellate courts should not interfere to reverse exercise of discretion of trial court in regard to order of judicial investigation including the time and manner of introducing evidence, unless such exercise appears to have been had arbitrarily, capriciously, or unjustly.

10. NEGLIGENCE.

In automobile owner's action against railroad for injuries sustained in collision between train and automobile at night at unobstructed crossing while automobile was being driven by driver with permission and in interest of owner who was seated beside driver, comparing and allocating negligence of railroad in failing to give signals required by statute, and negligence of driver in driving onto track without stopping, looking, or listening, was duty of jury under statute providing that contributory negligence of injured person does not bar a recovery for injuries (Code 1930, secs. 511, 6125).

HON. THOS. H. JOHNSTON, Judge.

APPEAL from the circuit court of Lee county, HON. THOS. H. JOHNSTON, Judge.

Suit by Charles K. Flynn against J. M. Kurn and John G. Lonsdale, trustees of the St. Louis-San Francisco Railway Company, and another, for injuries sustained when plaintiff as an occupant in his automobile was struck by defendant's train. From a judgment for $ 1500, plaintiff appeals, and named defendant files an assignment of error on cross-bill. Affirmed on direct and cross appeal.

Affirmed on direct and cross appeal.

Geo. T. & Chas. S. Mitchell, of Tupelo, for appellant.

The granting of the two instructions eliminating from the consideration of the jury the speed of the train and telling the jury by those instructions that the operators of the train had the legal right to run the train at the speed at which it was going, was nothing less than gross error.

I. C. R. R. Co. v. Williams, 144 Miss. 804, 110 So. 510.

In the face of the overwhelming testimony that the signals were not given, the jury very properly found for the plaintiff.

Section 6125, Code of 1930.

When we consider that the court below eliminated from the consideration of the jury the allegation of negligence contained in the declaration as to the reckless and dangerous rate of speed at which the train was running at the time of the collision, and instructed the jury that even though they might believe from the evidence that the train was running at a dangerous and reckless rate of speed, this was no evidence of negligence on the part of the agents and servants of the trustees of said railroad; that the court below denied appellant the right to have Dr. Hill explain the difference between an exostosis or fracture; that the court refused appellant the right to have Mr. Toomer testify as to the injuries sustained by him and to the fact that the controverted proturberance was not an exostosis but a fracture, and this before Dr. Stacey or any other person offered by said trustees testified as to the injuries sustained by plaintiff; when we recall the many erroneous instructions announcing to the jury that Crump was the agent and servant of appellant, that he was guilty of gross negligence and that appellant was chargeable therewith, regardless of the fact that the undisputed testimony shows that appellant had no opportunity to caution Crump or protest against his reckless driving, it is remarkable that the jury returned any verdict at all in favor of appellant. The fact of the matter is that appellant was practically instructed out of court, and except for the glaring errors which worked a great injustice to appellant, the jury would have returned a verdict for a respectable and substantial amount.

The undisputed evidence shows that appellant has already incurred obligations amounting to approximately $ 1700; that unless he undergoes a major operation he is permanently injured, and even that major operation may not restore him to normalcy; that if he undergoes this major operation, it will mean an additional expenditure of approximately $ 1000 and require him to remain in a plaster cast for approximately ten weeks; that at the time he received the injuries, he was thirty-three years of age, strong and able-bodied and was earning $ 60.00 per month in a position he had held for several years and which he will never again be able to hold even though that major operation may prove successful; that he has suffered great loss of time, the total destruction of his automobile, and has suffered and will continue to suffer physically and mentally by reason of such injuries, and it cannot be argued with any seriousness that the pitiful amount of $ 1500, less than enough to pay the medical and hospital bills already incurred, was fair and reasonable compensation.

C. R. Bolton, of Tupelo, D. W. Houston, Sr. & Jr., of Aberdeen, and Joseph W. Jamison, of St, Louis, Mo., for appellees.

The first ground argued by the appellant in his brief for reversal of this case is the action of the court below in granting the instructions for the defendants as to the rate of speed of the train and eliminating that as a question of negligence. Without taking up the particular instructions, the language of which appellant does not complain of, but considering the question as a whole, which is the basis of this ground of complaint, we respectfully say that the action of the trial court on the question of the speed of the train and eliminating this as a ground of negligence was eminently correct as is shown by the record in this case.

Y. & M. V. R. R. Co. v. Lamensdorf, 178 So. 80, 177 So. 53.

This court has held in a number of cases that railroads are not required to reduce the speed of trains at all grade crossings in anticipation of the chance that some person may carelessly be upon the crossing.

Hancock v. I. C. R. R. Co., 158 Miss. 688, 131 So. 83; N. O. & N.E. R. Co. v. Holsomback, 168. Miss. 493, 151 So. 720; N. O. & N.E. R. Co. v. Wheat, 172 Miss. 524, 160 So. 607; M. & O. R. R. Co. v. Johnson, 157 Miss. 266, 126 So. 827; M. & O. R. R. Co. v. Bryant, 157 Miss. 528, 132 So. 539.

Indisputably signals were given for the crossing. Even plaintiff's witnesses, Oscar Studdard and his wife, say the train blew for the crossing, but the plaintiff and his assisting defendant, Crump, did not hear it. They both say the first time they saw the train the front wheel of their car was on the rail of the track and the train was only 200 feet away. They state they were in imminent peril. If they were in such emergency as they state, it is unreasonable that they could with any degree of dependability testify as to the signals, and especially as to whether the bell was ringing.

Y. & M. V. R. Co. v. Lamensdorf, 178 So. 80.

This court has held that where the injured party failed to call the physician who attended such party and refused to do so and to allow the opposing party to call such physician to testify as...

To continue reading

Request your trial
10 cases
  • Avent v. Tucker
    • United States
    • United States State Supreme Court of Mississippi
    • March 18, 1940
    ...Miss. 180, 146 So. 877; Thomas v. Lexington, 168 Miss. 107, 150 So. 816; Miss. Cent. Ry. v. Roberds, 173 Miss. 487, 160 So. 604; Flynn v. Kurn, 184 So. 160; Gower v. 169 Miss. 344, 145 So. 244. The verdict is excessive. G. & S. I. R. R. v. Boone, 120 Miss. 632, 82 So. 335; Y. & M. V. R. R. ......
  • Loan Corporation v. Wiggins
    • United States
    • United States State Supreme Court of Mississippi
    • May 13, 1940
    ...... in the court below in such case was contrary to the. overwhelming weight of the evidence. . . Flynn. v. Kurn, 184 So. 160, 183 Miss. 413. . . The. trustee was shown to be in the full time employ of appellant. on a salary basis at the ......
  • New Orleans & N. E. R. Co. v. Burney
    • United States
    • United States State Supreme Court of Mississippi
    • December 16, 1963
    ...& N. E. R. R. Co. v. Wheat, 172 Miss. 524, 160 So. 607; Illinois C. R. R. Co. v. Roberson, 186 Miss. 507, 191 So. 494; Flynn v. Kurn, et al., 183 Miss. 413, 132 So. 339; New Orleans & N. E. R. R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720. See also Mobile & O. R. R. Co. v. Johnson, supra......
  • Illinois Cent. R. Co. v. Roberson
    • United States
    • United States State Supreme Court of Mississippi
    • October 23, 1939
    ...passenger trains be operated at high speed and not slowed down ordinarily for crossings outside speed restricted districts. Flynn v. Kurn, 183 Miss. 413, 184 So. 160; Mobile & Ohio R. Co. v. Bryant, 159 Miss. 528, So. 539; Buono v. Ill. C. R. Co., 124 So. (La.), 694; Note 29 A.L.R. 1049. Ac......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT