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

• Decision Date: 07 March 1938
• Docket Number: 33050
• Citation: 181 So. 741,181 Miss. 254,179 So. 355
• Parties: GULF & S. I. R. Co. v. BOND et al
• Court: Mississippi Supreme Court

179 So. 355

181 So. 741, 181 Miss. 254

GULF & S. I. R. Co. v. BOND et al

No. 33050

Supreme Court of Mississippi

March 7, 1938

Division B

Suggestion Of Error Overruled April 15, 1938.

APPEAL from the circuit court of Stone County, HON. W. A. WHITE Judge.

Action by Mrs. Lois Bond and others against Gulf & Ship Island Railroad Company, for the death of Carson Bond from being struck by a train. From a judgment for plaintiffs, defendant appeals. Affirmed, with remittitur.

On motion to correct judgment. Motion sustained in part and overruled in part.

Affirmed with remittitur. Sustained in part; overruled in part.

Creekmore, Creekmore & Capers, of Jackson, W. C Batson, of Wiggins, E. C. Craig, of Chicago, Ill., and Burch, Minor & McKay, of Memphis, Tenn., for appellant.

Defendant insists that it was entitled to a directed verdict on the whole case.

Murray v. Louisville, etc., R. Co., 188 Miss. 513, 151 So. 913.

There was no violation of bell and whistle statute and no failure to sound signals.

Section 6125, Code of 1930.

Deceased was a trespasser to whom defendant owed only the duty owing a trespasser.

The prima facie statute is not involved. The case was tried in the lower court on the theory that the prima facie statute, Code 1930, Section 1580, was not involved. No instructions under the prima facie statute were asked by either party.

Murray v. Louisville, etc., R. Co., 168 Miss. 513, 151 So. 913; Williams v. Lumpkin, 189 Miss. 146, 152 So. 842.

Defendant was under no duty to sound other or additional warning signals.

Y. & M. V. R. Co. v. Lamensdorf, 180 Miss. 426; Y. & M. V. R. R. Co. v. Green, 167 Miss. 137, 147 So. 333; Thompson v. Miss., etc., R. Co., 175 Miss. 547, 166 So. 363.

The trial court improperly submitted to the jury question whether speed of train proximately caused the death of deceased. Defendant contends that on this record the trial court should have decided as a matter of law that the speed of the train was not a proximate cause of the injury.

New Orleans, etc., R. Co. v. Branton, 167 Miss. 52, 146 So. 870; Yazoo, etc., R. Co. v. Lee, 148 Miss. 809, 114 So. 866; Clark v. Illinois, etc., R. Co., 286 F. 915; Connally v. Louisville, etc., R. Co., 4 F.2d 539; Louisville, etc., R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Howell v. Illinois, etc., R. Co. 75 Miss. 248, 21 So. 746; Bufkin v. Louisville, etc., R. Co., 161 Miss. 594, 137 So. 517; Yazoo, etc., R. Co. v. Green, 167 Miss. 137, 147 So. 333.

The trial court properly charged the jury that the engineer was under no duty to stop the train or slacken its speed until it became reasonably apparent to him that deceased would not step aside to a place of safety. It is common knowledge that deceased could have stepped aside at the last moment. Almost everyone has done that, or has seen it done. There being no doubt that deceased was perfectly normal and in possession of his faculties, was not the engineer entitled to assume as a matter of law that he would step to a place of safety?

A verdict cannot rest on speculation and conjecture.

Columbus, etc., R. Co. v. Coleman, 172 Miss. 514, 160 So. 266; Tyson v. Utterback, 154 Miss. 381, 122 So. 496; Hercules Powder Co. v. Calcote, 1Ol Miss, 860, 138 So. 583; Yazoo, etc., R. Co. v. Green, 167 Miss. 137, 147 So. 333; New Orleans, etc., R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Dr. Pepper Bottling Co. v. Gordy, 174 Miss. 392, 164 So. 236.

Instructions given for plaintiff are erroneous and fatally defective. A defendant may be guilty of some negligence but if the negligence is not a proximate cause of the accident but the accident is caused solely by other things then defendant's negligence is remote and not actionable and no liability can be grounded on such negligence.

Y. & M. V. R. R, Co. v. Aultman, 173 So. 280; Louisville, etc., R. Co. v. Daniels, 135 Miss. 33, 99' So. 434; Brinkley v. So. R. Co., 113 Miss. 367, 74 So. 280; Miss., etc., R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Clisby v. Mobile, etc., R. Co., 78 Miss. 937, 29 So. 913; Alabama. etc., R. Co. v. Carter, 77 Miss. 511, 27 So. 993.

By an instruction the jury is told to find for the plaintiff if they believe that deceased was run over and killed by the negligent operation of defendant's train, if they believed that such negligence was the proximate cause of his death. In other words, under this instruction, the jury is not required to find that the defendant was guilty of the negligence alleged in the declaration or mentioned in other instructions, or of any specific negligence, but was directed to find a verdict for the plaintiff if defendant was guilty of any negligence that caused the accident. In other wards, the doors were opened wide for the jury and if the jury thought the defendant was negligent in any manner that contributed to the accident, they were directed to find a verdict for the plaintiffs. This instruction has been condemned in no uncertain terms in several cases.

Hines v. McCullers, 121 Miss. 666, 83 So. 734; Y. & M. V. R. R. Co. v. Aultman, 173 So. 280.

The general rule is that the railroad company is under no duty except not to wilfully or wantonly injure a trespasser, after discovering his presence on the track.

I. C. R. R. Co. v. Ash, 128 Miss, 410, 90 So. 31; New Orleans M. & C. R. R. Co. v. Harrison, 105 Miss. 18, 61 So. 655; Hubbard v. Southern Ry., 120 Miss. 834, 83 So. 247; Burks v. Y. & M. V. R. R. Co., 153 Miss. 428, 121 So. 120; Fuller v. I. C. R. R. Co., 100 Miss. 705, 56 So. 783; Ala. Great So. Ry. v. Daniel, 108 Miss. 358, 66 So. 730.

As a general rule a railway company is entitled to a clear track and owes no obligation to keep a lookout for trespassers.

Y. & M. V. R. R. Co. v. Smith, 111 Miss. 471, 71 So. 752; M. & O. R. R. Co v. Robinson, 132 Miss. 841, 96 So. 749; Hubbard v. So. Ry., 120 Miss. 834, 83 So. 247; Murray v. L. & N. R. R. Co., 168 Miss. 513, 151 So. 913.

Nothing is better settled in this state than that incorrect instructions are not cured by correct instructions, and that a verdict resting on contradictory and misleadlng instructions Will not be sustained. It was so held in the following cases:

Railroad v. Cornelius, 95 So. 90; Railroad v. Phillips. 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; Railroad v. McGowen, 92; Miss. 603; McNeil v. Bay Springs Bank, 100 Miss. 271; Soloman v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677; Louisville, etc., R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93: Yazoo, etc., R. Co. v. Hawkins, 159 Miss. 775, 132 So. 742; Columbus, etc., R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; New Orleans, etc., R. Co. v. Wheat, 172 Miss. 524, 160 So. 607; Russell v. Williams, 168 Miss. 181, 150 So. 528; Railroad v. Trotter, 61 Miss. 417; Railroad v. Minor, 69 Miss. 722.

The verdict is grossly excessive.

U. B. Parker, of Wiggins, for appellee

The defendant insisted in the trial of this case that it Was entitled to a peremptory instruction. It insisted that this case was governed by the law in the case of Murray v. L. & N. Railroad Co., 168 Miss. 513, 151 So. 913, and alleged that the deceased was a trespasser and that defendant and its agents owed him no duty to keep a lookout for him and that the only duty it owed the deceased was to not wrongfully injure him if and when they discovered that he was in a place of danger. Defendant also insisted that the prima facie statute did not apply.

Plaintiff insisted that there was no similarity in the case at bar and the case of Murray v. L. & N. Railroad Company, supra; that the deceased was not a trespasser but on account of the location and the uses made of same by the defendant, that deceased was an invitee, and plaintiff not only insists that the court should have held that the deceased was an invitee as a matter of law; but if he is wrong in that, that the question of his status, that is to say, whether or not he Was an invitee and licensee or trespasser, was a question of fact for the jury and that the court erred in granting the instructions to the defendant which withdrew this question from the jury. And that under the circumstances in this case the prima faeie statute would apply.

Plaintiff insisted in the court below and insists now that this case is controlled expressly by the cases of G. & S. I. Railroad Co. v. Williamson, 162 Miss. 726, 139 So. 601; N. O. M. & C. R. R. Co. v. Harrison, 105 Miss. 18, 111 Miss. 471; 61 So. 655; 71 So. 752; and Railroad Co. v. Hawkins, 82 Miss. 209, 23 So. 323.

In the case at bar the agents and servants of the defendant in charge of its train not only owed the deceased and the public the duty to keep a strict lookout for persons who might be endangered on its track, but that the deceased was an invitee and a greater amount of care was required of the employees of the defendant in approaching the location where he was killed and we are Supported in this contention in the case of Young v. Southern Ry., 97 Miss. 483, 52 So. 19.

L. & N. R. R. Co. v. Williams, 62 So. 676.

We say that if the agents and employees of the defendant had been on the proper lookout, they would have seen the deceased and appreciated his danger, then would have been the time to stop the train. But we further say that running the train at 25 miles an hour as they were, we say it is doubtful if it could have been stopped in time to save the life of plaintiff if they did not begin to keep a strict lookout until they arrived at the very foot of the premises dividing the location of the territory on which the deceased was an invitee or was not an invitee.

We say there is no speculation or conjecture in this case. The deceased was killed...