Gulf & Ship Island R. R. Co. v. Simmons

• Decision Date: 18 February 1929
• Docket Number: 27669
• Citation: 121 So. 144,153 Miss. 327
• Parties: GULF & SHIP ISLAND R. R. CO. v. SIMMONS et al. [*]
• Court: Mississippi Supreme Court

121 So. 144

153 Miss. 327

GULF & SHIP ISLAND R. R. CO. v. SIMMONS et al. ^[*]

No. 27669

Supreme Court of Mississippi

February 18, 1929

Division B

1 RAILROADS. Travelers on highway have right to insist that train signals be given at crossing, as required by statute.

Travelers on highway have right to insist that statutory train signals be given at crossing, not only that they may be warned thereby to keep off track, but that they may extricate themselves and their property from position of danger.

2. RAILROADS. Where, if train signals had been given, traveler might have avoided danger of injury at crossing, failure to give signals may be considered proximate cause of injury or death.

Where if train signals had been given, traveler on highway by virtue of warning might have avoided danger of injury at crossing, failure to give statutory signals may be considered as proximate cause of injury or death that results.

3. EVIDENCE. It is common knowledge that automobile can be quickly turned to right or left without regard to brakes. Court and juries may take knowledge of fact that automobile can be quickly turned to right or to left without regard to brakes.

4. APPEAL AND ERROR. On appeal from judgment in second trial supreme court is confined to present record of evidence.

On appeal from judgment in second trial, supreme court is, as to facts, confined on appeal to present record of evidence.

5. APPEAL AND ERROR. Doctrine of law of case does not apply to recitals of fact in opinion on former appeal.

Doctrine of law of case does not apply to mere recitals of fact in an opinion on a former appeal, since supreme court is not constitutionally authorized to make original finding of fact.

6. COURTS. All parts of opinion of court must be read together.

All parts of opinion of court must be taken and read together and it is not permissible to detach one expression from others on same point.

7. APPEAL AND ERROR. Supreme court cannot reverse, where there is sufficient evidence to justify conclusion of jury.

Supreme court has no rightful authority to reverse, where there is sufficient evidence to justify conclusion of jury.

8. TRIAL. Circuit court can give no instruction not requested. Circuit court can give no instruction that is not requested.

9. APPEAL AND ERROR. In civil cases, trial judge cannot be put in error with respect to asserted omission when he is prohibited from acting.

In civil cases, trial judge cannot be put in error with respect to asserted omission when he had no power to act and was prohibited from acting.

10. DEATH. Twenty thousand dollars to widow and son for death of decedent thirty-four years old, earning two thousand seven hundred dollars per year, held not excessive.

Verdict for twenty thousand dollars to widow and son for death of man thirty-four years of age, in good health, a college graduate, earning two thousand seven hundred dollars per year as teacher, held not excessive, even though both he and railroad company were guilty of gross negligence when decedent was struck by train.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county., HON. J. Q. LANGSTON, Judge.

Action by Lucille Simmons and others against the Gulf & Ship Island Railroad Company. From the judgment, defendant appeals. Affirmed.

Affirmed.

T. J. Wills and Chas. N. Burch, for appellant.

It will be noted that the only reason the court refused to enter judgment for the railroad company, on reversing this case on the former appeal, was that it said that if the signals had been given it is entirely probable that Simmons could have removed himself and his children to a place of safety before the arrival of the train at the crossing.

The law is that if Simmons could not have removed himself and his children from the car into a place of safety then the blowing of the whistle or the ringing of the bell would not have averted the accident and injury and the failure so to do would not be a contributing proximate cause to Simmons' injury and death. 22 R. C. L. 182.

The burden of proving, as a matter of fact, that the failure to comply with the statute caused or contributed to the injury or the burden of producing evidence from which a jury may infer that the failure to comply with the statute caused or contributed to the injury rests upon the plaintiff. I. & G. N. R. R. Co. v. Mathews Co., 158 S.W. 1048; T. &. P. R. R. Co. v. Moody, 169 S.W. 1058; T. & P. R. R. Co. v. Marrujo, 172 S.W. 588. The plaintiff in this case, did not meet the burden of showing that a sufficient time elapsed from the time that Simmons' car stopped on the track until he was struck by the oncoming train and killed, to have enabled him to have extricated himself and his children from the dangers in which they were placed. On the other hand the plaintiffs proved by their witnesses Reddick and Crews, and the only eyewitnesses who testified in the case as to what happened, that Simmons did not have time to get out of the car and get his children out from the time his car came to a stop until he was struck by the train. See, also, L. & N. R. R. Co. v. Gilmore, 21 L. R. A. (N. S.) 723; Great Northern R. R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406; Grand Trunk R. R. Co. v. McAlpin, Am. & Eng. Ann. cases, 1914A, 532; Davis v. Pere Marquette R. R. Co., 216 N.W. 424; Stroud v. C., M. & St. P. Co., 243 P. 1089; Haarastrich v. Oregon Short Line Co., 262 P. 100; Hickey v. Mo. P. R. R. Co., 8 F.2d 128.

It is assigned as error that the court failed to charge the jury as to the measure of damages, or the law by which they were to be guided in fixing damages if they found for the plaintiffs. The law is well settled that where no charge whatever is given upon a vital question or issue in the case, it is reversible error. Thompson on Trials, par. 1472; Houston & T. C. R. R. Co. v. Buchanan, 84 S.W. 1073; Citizens St. R. R. Co. v. Burke, 40 S.W. 1085; Western Md. R. R. Co. v. Martin, 73 A. 267; Coccora v. Vicksburg Light & Traction Co., 126 Miss. 713, 89 So. 257.

The court correctly instructed the jury that the deceased Simmons was guilty of gross negligence. The court further instructed the jury that the plaintiffs would not be entitled to recover full damages if they were entitled to recover at all. The jury, however, refused to yield to this instruction of the court, and returned a verdict for twenty thousand dollars. When the present worth of an annual earning capacity, where money is worth six per cent is taken into consideration, twenty thousand dollars would be full and complete compensation for the plaintiffs had the deceased been free from negligence altogether. The failure of the jury to yield to the instruction of the court and the size of the verdict indicate that they were controlled by passion and prejudice against the railroad company. Y. & M. V. R. R. Co. v. Williams, 114 Miss. 235, 74 So. 835; Tendall v. Davis, 129 Miss. 30, 91 So. 701.

Henry Mounger, Jr., Davis & Conner and Hall & Hall, for appellees.

Counsel for appellant contend that the train was immediately upon Mr. Simmons when he stopped on the railroad track and that for this reason the giving of a signal could not have done him any good. This assumption of counsel is not correct. Mr. Cruise testified that the train was not in sight when he and Simmons stopped. It will be borne in mind that upon the hill where Simmons bumped Cruise's car the track can be seen for a considerable distance in the direction from which the train was coming, but this distance decreases as a person approaches the track. It is positively shown that the train was not in sight when Simmons stopped on the track, but if we should concede for the sake of argument that the train was very near at hand, as counsel for appellant have argued, then we submit that Mr. Simmons was still entitled to the signals under the doctrine of last clear chance, because if the signals had been given three hundred yards away he would have heard them and would have seen the train, and instead of bringing his car to rest at a standstill upon the railroad track he would have had ample opportunity in descending the hill towards the track to have turned his car into the ditch or embankment, either to the right or to the left, and in that manner would have kept himself and his children off the railroad track from in front of the train. Grand Trunk R. R. Co. v. Ives, 36 L.Ed. 486; C. & G. R. R. Co. v. Lee, 115 So. 782.

We find no fault whatever with the rule cited by appellant, as announced in 22 R. C. L. 182. We agree that the failure to comply with the statute as to giving signal by bell or whistle upon approaching the crossing must in some manner contribute to the injury, or else the railroad company is not liable. This is the rule upon which our case is based, and we submit that it is shown beyond any kind of doubt that the signal was not given and that if it had been given Mr. Simmons would have had twenty seconds additional warning which would have been ample time for him to have saved himself and his baby, and that consequently the failure to give the signal was the proximate cause of his injury and death.

Appellant argues that the lower court erred in failing to charge the jury as to the measure of damages. No instruction on the elements of damages was asked for and none was refused by the court. It is well settled in Mississippi that the judge is not authorized to instruct the jury except upon request. Sec 591, Hem. 1927 Code; Bacon v. Bacon, 76 Miss. 458, 24 So. 968; Y. & M. V. R. R. Co. v. Messina, 109 Miss. 143, 67 So. 963; Pringle v. State, 108 Miss. 802, 67 So. 455; Bangs v. State, 61 Miss. 363; Johnson v. State, 78 Miss. 627, 29 So. 515; St. L. & S. F. R. R. Co. v. Moore, 101 Miss. 768, 58 So. 471; Anno. ...