Grantham v. Gulf & S. I. R. Co.

• Decision Date: 09 March 1925
• Docket Number: 24722
• Citation: 138 Miss. 360,103 So. 131
• Parties: GRANTHAM v. GULF & S. I. R. CO. [*]
• Court: Mississippi Supreme Court

103 So. 131

138 Miss. 360

GRANTHAM v. GULF & S. I. R. CO. ^[*]

No. 24722

Supreme Court of Mississippi

March 9, 1925

Division B

1 RAILROADS. Instruction law presumes statutory signals were given held ground for reversal, where evidence on issue was conflicting.

In action for injuries sustained by passenger of bus struck by train at crossing, in which there was a sharp conflict in the evidence as to whether the bell of the locomotive was rung before train reached crossing as required by the statute instruction that "law presumes and the jury must consider... that the bell was rung, as required by law," held ground for reversal, since jury may have been led to follow the presumption instead of determining the issue entirely on the evidence.

2 RAILROADS. Presumption statutory signals were given does not obtain, where evidence is conflicting.

In action for injuries to passenger of bus struck by train at crossing, in which all the facts and circumstances connected with the injury were fully disclosed by the evidence and there was a sharp conflict in the evidence as to whether the locomotive bell was rung as required by statute, the presumption that the railroad complied with the statute and rung the bell does not obtain, since in such case the question is to be decided by the jury from the evidence.

3 RAILROADS. Presumptions disappear from case when facts disclosing how injury occurred.

When all the facts disclosing how collision between bus and train at crossing occurred were submitted to jury, the statutory presumption of negligence caused by the running of cars and the presumption in favor of the railroad that it was obeying the law disappeared from the case, leaving jury to decide issue on testimony alone, though burden of proving his case as a whole still remained in plaintiff.

4. TRIAL. Instruction as to presumption that whistle was blown on approach of train to crossing, where uncontradicted evidence showed that it was not blown, held erroneous.

In action for injuries sustained by passenger of bus struck by defendant's train at crossing, in which the uncontradicted evidence showed that whistle was not blown, instruction "that the law presumes and the jury must consider that the whistle was blown" held erroneous.

HON. D. M. GRAHAM, Judge.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM, Judge.

Action by S. Grantham against the Gulf & Ship Island Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Mize & Mize, for appellant.

The Carlson case, a companion case, decided and reported in 102 So. 168, settles the proposition that this was a case for the jury. This is a much stronger case for the appellant than the Carlson case was for Carlson, because in that case both the bus company and the railroad company were sued, while here only the railroad company is sued. The driver of the bus was not introduced in the Carlson case, and his act in driving upon the crossing was unexplained in that case.

The court gave the following instruction: "The court charges the jury for the defendant Gulf & Ship Island Railroad Company that the law presumes and the jury must consider that the whistle was blown, or that the bell was rung, as required by law. The law imposes upon the plaintiff the burden of proving by a preponderance of the testimony and the weight thereof that the whistle was not blown or the bell rung, as required by law, and unless the plaintiff has so proven, by the preponderance of the evidence, the failure to blow the whistle for the highway crossing or to ring the bell for the crossing, as required by law, it is the sworn duty of the jury to find that the whistle was blown or the bell rung as the law requires, and to return a verdict of: 'We, the jury, find for the defendant, the Gulf & Ship Island Railroad Company.'"

This instruction is about as erroneous as an instruction could be. Section 1645, Hemingway's Code, makes proof of injury inflicted by the running of engines or cars of a railroad company or other such corporation prima-facie evidence of negligence on the part of such company; and, under the doctrine laid down in the case of Landrum v. Railroad Co., 89 Miss. 406, and the Brooks case, 85 Miss. 269, and a great number of cases since, construing this statute, when the injury is once shown, then the railroad company must show all the facts surrounding the injury, and, to overcome the statutory presumption, the facts so shown must exonerate the company from blame.

So, if there had been no testimony in this case but the testimony of Grantham, then Grantham would have been entitled to a peremptory instruction to find for him; but, the railroad company undertook to show all of the facts in the case, and, in showing all of the facts in the case, in connection with the facts shown by Grantham, the presumption in favor of Grantham disappears and the case must be determined by the jury on all of the facts shown. See Railroad v. Hamilton, 62 Miss. 503; Railroad v. Doggett, 67 Miss. 250.

The presumption should yield to facts where they are sufficiently shown. Railroad v. Phillips, 64 Miss. 693; Railroad v. Bourgeois, 66 Miss. 3; Hamlin v. Y. & M. V. R. R. Co., 72 Miss. 39; Nichols v. Railroad Company, 83 Miss. 126. Further, we call the court's attention to the fact that nowhere is the weight of the bell shown to comply with the statute. Section 6669, Hemingway's Code; Reed v. I. C. R. R. Co., 113 Miss. 545; Carney v. A. G. S. R. R. Co., 109 Miss. 233.

The court erred in giving this instruction for the railroad company: "The court charges the jury for the defendant Gulf & Ship Island Railroad Company that under the law the railroad company was not required to blow the whistle on approaching the highway crossing. If the bell on the engine was ringing, all the warning was given that the law required, and if you believe the bell was ringing on approaching the highway crossing, then you are instructed that under the law the engineer was not required to blow the whistle."

The intent of the instruction was this (though not properly drawn because of failure to give the weight of the bell and the distance it must be rung as the statute requires); to inform the jury that if the bell on the engine was ringing, the engineer could just sit back and give no further alarm though he saw or knew that persons in peril of their lives were going on this crossing and the train was bearing down on them at the rate of thirty miles an hour with only fifty or sixty feet between the train and the crossing. But this is not the law: 3 Elliott on Railroads, sec. 1648, p. 500.

T. J. Wills, for appellee.

I. Following the order adopted by counsel for appellant in their brief, we come to consider the first action of the court, which they consider error, and that is, the giving of instruction No. 1 for the defendant. This instruction is perfectly proper and correctly informed the jury on the subject. The negligence complained of in the declaration, and the only negligence complained of, as above set out, was the failure of the defendant to ring the bell or to blow the whistle, as required by section 6669, Hemingway's Code.

Inasmuch as the plaintiff himself set out in his declaration that the violation of this statute in failing to ring the bell or blow the whistle on approaching the crossing was the sole and only negligence in the case, he assumed the burden of proving this negligence. It is clear then, that both because of the allegations in the plaintiff's declaration with reference to the defendant's negligence and because of the assumption of the burden of proving the same by the plaintiff on the trial, it was incumbent upon him to establish the alleged negligence by a preponderance of the evidence. The defendant was entitled to the presumption against negligence, which presumption had to be overcome by the plaintiff. This is precisely what the instruction was. It correctly informed the jury on the subject, and was proper.

Section 1645, Hemingway's Code, called the prima-facie statute, has no application in this case. Its sole purpose is, to aid the plaintiff where proof is lacking; in cases where the plaintiff cannot prove the facts in his case; in cases where he is without information and without sufficient facts to establish negligence on the part of the defendant. And conversely, where the plaintiff is in possession of the facts, and states them in his declaration, and assumes the burden of proving them on the trial, he cannot invoke the aid of the prima-facie statute. This very point has already been decided, and this position sustained. Gilchrist-Fordney Co. v. Parker, 109 Miss. 445, 69 So. 290; A. & V. R. R. Co. v. Thornhill, 63 So. 674.

The burden is always on the plaintiff to show negligence. Gilchrist-Fordney Co. v. Parker, supra; Kyle v. Colmer (Miss.), 1 How. 121; Merrill v. Melchior, 30 Miss. 516; Kerr v. Freeman, 33 Miss. 292; Harper v. Ray, 27 Miss. 622; A. & V. R. R. Co. v. Groome, 52 So. 703; 2 Dec. Dig. Vol. 17, Negligence IV. B, Key No. or section 121; 37 Cent. Dig. (Negligence), secs. 217 and 224.

Moreover the instruction was proper because of the fact that the statute required the ringing of the bell or the blowing of the whistle on the...