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

• Decision Date: 26 October 1903
• Citation: 82 Miss. 653,35 So. 158
• Parties: GULF & SHIP ISLAND RAILROAD COMPANY v. BUSTER NELSON
• Court: Mississippi Supreme Court

35 So. 158

82 Miss. 653

GULF & SHIP ISLAND RAILROAD COMPANY v. BUSTER NELSON

Supreme Court of Mississippi

October 26, 1903

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

Nelson appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment for $ 500 in plaintiff's favor, the defendant appealed to the supreme court.

On the trial plaintiff testified that he was kicked off a passenger train running about thirty-five miles an hour by the porter of the train, and was badly injured thereby. Defendant's testimony tended to show that plaintiff was stealing a ride on the train, and when discovered he attempted to get off fell and injured himself. Only one instruction was given for plaintiff, which was as follows: "If the jury believe from the evidence that the porter of defendant, on the train in question, pushed, forced or threw Buster Nelson from the train, and by his fall from the train, so caused, the plaintiff was injured as set out in the declaration, then the jury should find for the plaintiff, and assess his damages in such sum as they may believe from the evidence he has been damaged, not to exceed the sum of five thousand dollars; and this, too, whether or not they may believe from the evidence plaintiff had a ticket on said train and trip."

Affirmed.

McWillie & Thompson, for appellant.

The instruction for the plaintiff is erroneous. It is erroneous in that it fixes $ 5,000, the sum demanded in the declaration, as the maximum of recovery. This was an intimation to the jury that the finding of such a sum would not be excessive. We know this form of instruction is quite common, and we know, too, that as an abstract proposition it is true, but nevertheless it should not have been given, and never should be given. Suppose the declaration had demanded $ 10,000,000; one sum is as easily demanded as another, and suppose the instruction had named $ 10,000,000 instead of $ 5,000, would it not be absurd? The instruction practically informed the jury that the court would maintain a verdict for $ 5,000, and of course such an announcement would have the effect of increasing the finding. Can you not see very well the influence the instruction would have on the minds of the jurors inclined to think a small sum proper? The answer to the suggestion of a small sum is patent, and it would be something like this, "$ 100 or $ 150 would be ridiculous since the judge said we may find $ 5,000. He must have meant our finding to...