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

• Decision Date: 13 March 1905
• Citation: 85 Miss. 313,38 So. 43
• Parties: GULF & SHIP ISLAND RAILROAD COMPANY v. SIMEON S. BOSWELL
• Court: Mississippi Supreme Court

38 So. 43

85 Miss. 313

GULF & SHIP ISLAND RAILROAD COMPANY v. SIMEON S. BOSWELL

Supreme Court of Mississippi

March 13, 1905

FROM the circuit court of Simpson county, HON. JOHN R. ENOCHS Judge.

Boswell the appellee, was plaintiff, and the railroad company appellant, was defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The declaration alleges that "plaintiff was rightfully on one of defendant's detached freight cars by invitation and permission of defendant, removing and unloading some lumber from said car, which was then on defendant's side track in the town of Mendenhall, where it had been placed by defendant for the purpose of enabling plaintiff to remove the lumber, when defendant's servants in charge of a certain locomotive and train of cars recklessly, grossly negligently, and unlawfully ran said train of cars suddenly and violently against the detached car in which plaintiff was, throwing him off onto the ground with great force, and greatly hurt, bruised, and permanently injured plaintiff in body and limb, whereby plaintiff suffered and sustained great physical and mental anguish, and other inconveniences and deprivations, to plaintiff's damage $ 5,000." On motion of appellee the stenographer's notes, containing the only showing of the evidence, were stricken from the record. Appellee also made a motion to strike out the instructions in the case, because, as was charged in the motion, § 732, Code 1892, had not been complied with and there was no bill of exceptions making the instructions given and refused in the case part of the record. By agreement the original papers of the circuit court were sent up for inspection by the court. These papers disclose the following facts in regard to the instructions: All the instructions asked for and given for plaintiff were pinned together, and at the bottom of each instruction the word "Given" was written. There was a blank sheet of paper attached to the back of the instructions, and on it was written: "Filed April 20th, 1904. J. C. Smith, Clerk." The instructions refused for defendant were each written on separate pieces of paper, and at the bottom of each was written the word "Refused." These instructions were also bound together, and a blank sheet of paper attached, on the back of which was written: "Filed April 20th, 1904. J. C. Smith, Clerk." The instructions given for defendant were each on a separate sheet of paper, and were all bound together. At the bottom of each was written the word "Given." Some of them were marked "Filed" at the bottom by the clerk, and others were not so marked, but there was written on the back of the last one the style of the case and the number and the words: "Filed April 20th, 1904. J. C. Smith, Clerk." The opinion of the court contains a statement of such other facts as are necessary for a full understanding of the case.

Affirmed.

McWillie & Thompson, James H. Neville, and E. J. Bowers, for appellant.

1. Under the declaration in this case and the facts stated therein the plaintiff was in a freight car standing upon a side track, and was rightfully there for the purpose of unloading lumber from the car; and, this being true, we propound the proposition that Code 1892, § 3549, has no application.

We are, of course, familiar with the cases of Illinois, etc., R. R. Co. v. McCalip, 76 Miss. 360, and Yazoo, etc., R. R. Co. v. Metcalf, 84 Miss. (s.c., 36 South. Rep., 259), but neither of said cases presented for adjudciation the question here presented, which question is: Does the statute apply to a person who is in a car of the company at the time?

Surely the statute was intended only for the protection of persons who, and property which, might be upon the railroad tracks. The means provided by the statute for the protection of those within its contemplation, "a servant on foot, preceding the backing train, not exceeding forty nor under twenty feet in advance, to give warning," show that persons in the cars were not in the legislative mind when the statute was adopted.

If Code 1892, § 3549, has no application to persons receiving injuries while in the cars of the railroad company, and consequently none to the case made by the declaration, then it follows, even in the absence of the evidence, that two of the instructions given to plaintiff by the court below are erroneous.

2. The first instruction given for the plaintiff is erroneous and should not have been given under any conceivable state of case, and it ought, we think, to cause a reversal of the judgment appealed from, even should this court strike out the stenographer's report of the evidence.

The objection to this instruction would apply to any action of trespass for damages to the person, no matter what the evidence might be, and that objection is that the instruction does not confine the jury in estimating damages to the evidence, but turns them loose to assess damages without reference to the proof. Yazoo, etc., R. R. Co. v. Smith, 82 Miss. 656.

3. The second of the instructions asked by defendant, and which the court refused, ought not to have been refused in an action of trespass under any conceivable state of evidence. That instruction was in these words:

"Before the plaintiff is entitled to recover a verdict against the defendant, it is incumbent on him to make out a case by a preponderance of the evidence."

Is not this true of all actions of trespass? Most certainly it is. While the declaration in the case averred an injury to plaintiff "inflicted by the running of the locomotives and cars of (the railroad) such company," and proof of being so injured would have made out a prima facie case, under Code 1892, § 1808; yet the instruction should have been given, because before the aid of the statute could have been invoked it was incumbent on the plaintiff "to make out a case by a preponderance of the evidence," in the language of the instruction, showing that he had been so injured. The instruction surely ought to have been given, although plaintiff would, upon asking it, have been entitled to a counter one applying the statute, if the jury believed from the evidence plaintiff had shown by a preponderance of the evidence that he had been injured by the running of the locomotives or cars of the company. The fact that three of the instructions given for the plaintiff authorized action by the jury without regard to the evidence makes the effect of refusing the instruction under consideration especially prejudicial. The rule which will reverse, in the absence of the evidence, because of the giving of an instruction which should not have been given under any state of the evidence must apply to the refusal of an instruction which ought to have been given upon every conceivable state of facts. Chrestman v. Russell, 73 Miss. 452.

The sixth instruction given for plaintiff has no application to the case made by the declaration. The great weight of authority maintains the proposition that where the statute does not specifically designate the class to whom the duty of giving crossing signals is owing, it is due only to those who are about to use, or are using, or have lately used, the crossing, and that others cannot recover for injuries resulting from a failure to give the signals. Pike v. Chicago, etc., R. R. Co., 39 F. 754; Clark v. Missouri Pacific Ry. Co., 35 Kan. 350; East Tennessee, etc., R. R. Co. v. Feathers, 10 Lea (Tenn.), 103; Reynolds v. Great Northern, etc., R. R. Co., 69 F. 808; Bell v. Hannibal, etc., R. R. Co., 72 Mo. 50; Elwood v. New York, etc., Ry. Co., 4 Hum., (N. Y.), 808; Harty v. Central, etc., R. R. Co., 42 N.Y. 468; O'Donnell v. Providence, etc., R. R. Co., 6 R. I., 211, 216; Ransom v. Chicago, etc., R. R. Co., 62 Wis. 178 (s.c., 51 Am. St. Rep., 718, and note); Williams v. Chicago, etc., R. R. Co., 135 Ill. 491.

It was prejudicial error, therefore, for the court below, under the case made by the declaration, to have given said instruction, because the statute of which it was predicated had no application to the case.

Green &amp Green, and S. L. McLaurin, for appel...