Illinois Cent. R. Co. v. Nixon

• Decision Date: 24 May 1915
• Docket Number: 16954
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. NIXON ET AL

68 So. 466

109 Miss. 308

ILLINOIS CENT. R. CO. v. NIXON ET AL

No. 16954

Supreme Court of Mississippi

May 24, 1915

APPEAL from the circuit court of Panola county. HON. N. A. TAYLOR Judge.

Suit by H. L. Nixon and others against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Case affirmed.

Mayes &amp Mayes, for appellant.

The statute requires the verdict to be reduced in proportion to the amount of negligence attributable to the person injured and when, in instruction 11, the defendant undertook to tell the jury how this should be done the court would not give the instruction. This was plain and palpable error and should reverse this case. This left the jury without instruction or guide on the most vital point in the case so far as defendant was concerned.

The Mississippi law of contributory negligence is a copy of the Federal Law on the same subject, and the supreme court of the United States is good authority to follow in construing this law, and it has held that this instruction should be given.

In the case of New York, C. & St. L. R. Co. v. Niebel, 214 F. 952; Norfolk & W. R. Co. v. Earnest, 229 U.S 114; and in the case of Grand Trunk W. Ry. v Lindsay, 233 U.S. 42, construing the Federal Employer's Liability Act, of which the state law is a mere copy, the United States supreme court and the circuit court of appeals has held that in suits involving contributory negligence: "The total damage should be proportioned between defendant and plaintiff, according to the respective fractions of their total negligence." See, also, Pennsylvania Company v. Cole, 214 F. 948.

We understand that the above courts have approved this instruction No. 11, and yet every instruction which was asked by the defendant, which attempted to tell the jury how to assess damages and the method they should use was refused by the court.

P. H. Lowery and L. B. Lamb, for appellee.

The third question raised by the defendant upon the refusal of instruction No. 11 asked by the defendant presents a more serious question. It looks very much like the rule announced in the first part of this instruction is in accord with the view of the supreme court of the United States in N. & W. E. R. Co. v. Earnest, 57 L.Ed. 1096 and I admit that this construction of a similar statute by this great court is good authority.

I think the instruction asked is seriously objectionable and should not have been given because the latter part of it was calculated to lead the jury to believe that the court meant that in this case the negligence of the deceased was at least as great, or greater than the negligence of the defendant. The instruction after announcing the correct rule says:

"That is, that if they are guilty of equal negligence half compensation shall be allowed. If Nixon was guilty of twice as much negligence as defendant they should allow only one third of full compensation."

The natural construction of this language is that the court, after announcing the general rule, says in effect that this general rule means that if the deceased is guilty of as great or greater negligence than the defendant they must apportion the damages, implying that the court thought that it was at least equal to if not greater. If there was no other reason for refusing this instruction this seems to me to be amply sufficient.

Even if the instruction did not contain this objectionable conclusion it was entirely unnecessary to the defendant's case and the failure to give it could not have prejudiced the interest of the defendant. The jury had already been told by the defendant's instruction, granted by the court, in the language of the statute that if the deceased was negligent then the damages must be diminished in proportion as his negligence contributed to the injury. This could mean only one of two things.

First, that the damages must be diminished in the proportion that the negligence of the deceased bore to the negligence of the defendant, or second, in the proportion that the negligence of the deceased bore to the total negligence of the plaintiff and defendant. The court in the Earnest case, supra, gives the latter construction.

Now, if the instruction given meant that the damages must be diminished in proportion of the negligence of the deceased to the negligence of the defendant then, if they were equally negligent, the plaintiff could have recovered nothing. On the other hand, if the damages were to be diminished in proportion of the negligence of the deceased to the total negligence of both parties, then if they were equally negligent the plaintiff should have recovered half the actual damages. I take it that these are the only possible constructions...