Hubbard v. Southern Ry. Co

• Decision Date: 08 December 1919
• Docket Number: 20855
• Citation: 120 Miss. 835,83 So. 247
• Court: Mississippi Supreme Court
• Parties: HUBBARD v. SOUTHERN RY. CO

83 So. 247

120 Miss. 835

HUBBARD v. SOUTHERN RY. CO

No. 20855

Supreme Court of Mississippi

December 8, 1919

October 1919

1. APPEAL AND ERROR. An erroneous instruction harmless.

Where the defendant was entitled to a peremptory instruction, the plaintiff cannot complain that an erroneous instruction was given.

2 RAILROADS. Duty to trespassers on track.

A railroad owes no duty to a trespasser on its tracks except not to willfully or wantonly injure him after discovering his presence on the track.

HON. J W. P. BOGAN, Judge.

Appeal from the circuit court of Tishomingo county, HON. J. W. P BOGAN, Judge.

Suit by Paul Hubbard against the Southern Railway Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

Jas. A. Cunningham, for appellant.

Appellees in their brief try to justify the error of the court in contending that the evidence was not sufficient to show liability, and we will therefore submit some remarks in this reply brief to that point not touched upon in our original brief.

In the first the defendant company had the burden of exonerating themselves from that presumption of negligence raised by the statute. A careful reading of the evidence of the colored fireman put on the witness stand by the company in his cross-examination will convince the mind of the court that his evidence was so contradictory and so damaging to the company that it showed liability instead of exoneration. Then examine the evidence of the company's engineer witness on cross-examination and it will be seen that he admitted that he had good lights and in good condition, and that it was very dangerous to run a train in such place as this is shown to be from the evidence, without being on the lookout, and he admitted he could see a person at least one hundred and fifty yards on the track, and later admitted that he could see them much further and admitted that he realized this particular stretch of the road was in front of a hotel and summer resort and much frequented by people upon the roadbed and he also admitted that he was on the lookout until he had passed the hotel front, and that when he passed the hotel front, he was looking out down the track, and he estimated that he kept on the lookout down this track until he had passed the East wall of the hotel for two hundred yards and admitted again on the same page that he never took his eyes off the track until he had passed the trestle. This put him looking right upon the drunken man as he lay upon the track. Two hundred yards east of the hotel put him immediately upon the scene of the killing. The trestle puts him far beyond the scene of the killing. This is a place very much frequented, as the engineer admits. It is shown by the record that a test was made and forty-three pedestrians passed this place upon the track inside the space of an hour, and that no special occasion caused the frequency at this test. And the witness Hubbard testified further that this had been the case ever since he could recollect.

The evidence shows that this is a dump about twenty-one feet high (Wright's evidence) and that this man was injured less than two hundred yards east from the east side of the hotel.

Evidence shows two things conclusively on this point. One is that they ought to have been on the lookout at such a place. The next is if they were on the lookout they were bound to have seen this man lying upon the track and it was for the jury to say whether they exercised care, or in fact did see the man in time to prevent injuring him.

According to the witness Kier the man got his leg cut off when he wasn't there, but we think the jury must evidently have thought he was somewhere close around when his leg was cut off. We earnestly insist that this cause should be reversed and remanded for a new trial under instructions which will not be confusing and misleading to a jury.

J. M. Boone, for appellee.

It will be observed that the appellant does not assign any error as to the verdict of the jury being contrary to the evidence, makes no attack upon the instructions granted appellee on the question of the appellee's liability for the injury. Therefore, inasmuch as the verdict of the jury was a general verdict, it must stand, if it can be supported upon any theory of the case; and we say that it is abundantly supported on the theory that the evidence does not show appellee guilty of any negligence contributing to the injury of the appellant. And inasmuch as the jury had a right to find for the appellant on this branch of the case, and inasmuch as no complaint is made in the brief of counsel as to any instruction on this branch of the case, and the jury could have so found independent of what they believed about the release or its procurement it would be necessary for the appellant to assign as error that the verdict was contrary to the law and the evidence on this branch of the case in order for this court to even pass on that branch of the case. This he has not done. We, therefore have a verdict with an issue presented as to whether appellee was liable under the evidence for the injury to appellant, separate and distinct from the issue of settlement with appellant, and whatever the court might think of the release branch of the case, it must be affirmed on the issue of liability.

This branch of the case is not in any way affected by the fifth instruction of the appellee, complained of by the appellant and the fifth instruction can be right or wrong, yet the verdict of the jury stands. A reading of this record will demonstrate that the jury was right, if it meant by its verdict to say that the appellee was not liable for the injury to the appellant; this record shows appellant was evidently lying down on the ground at the end of the crossties and was not upon the track. The plaintiff is the only witness who testified on his side of the case on the merits of the case, and he states he was walking down in the middle of the track, and on...