Illinois Cent. R. Co. v. Handy

• Decision Date: 14 December 1914
• Docket Number: 16826
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. HANDY ET AL

66 So. 783

108 Miss. 421

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

No. 16826

Supreme Court of Mississippi

December 14, 1914

APPEAL from the circuit court of Madison county. HON. W. A. HENRY Judge.

Suit by Ella Handy and others against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

This is an appeal from a judgment for two thousand five hundred dollars. The instruction referred to in the opinion of the court is as follows:

"You are instructed to find a verdict for the plaintiffs in this case, therefore, it is your duty under your oaths to award them actual damages, that is, such a sum of money as will compensate the plaintiffs for the actual damage sustained in the loss of their husband and father. Of course, it is impossible to figure out accurately in dollars and cents what is an exact amount of money to be awarded plaintiffs as actual damage; but you must take a reasonable view of the case and consider what sum of money would be a reasonable amount to award to the plaintiffs as actual damages sustained in this case, taking into consideration all pecuniary loss to plaintiffs, if any, and also taking into consideration the loss of the companionship, protection, and society of plaintiffs' husband and father; but the amount to be awarded by you must not exceed ten thousand dollars; but if you believe from the evidence that at the time deceased was killed, deceased's own carelessness and negligence contributed to his injury and death, you shall diminish the actual damages you would otherwise award to plaintiffs in proportion as you believe from the evidence deceased's own negligence contributed to his death."

Affirmed.

Mayes &amp Mayes and R. V. Fletcher, for appellant.

A. K Foot and H. B. Graves, for appellee.

SMITH C. J. REED, J., dissents.

OPINION

SMITH, C. J.

Alfred Handy was struck and killed by one of appellant's trains, and this is an appeal from a judgment awarding appellees, his next of kin, damages therefor. Appellees were plaintiffs and appellant was defendant in the court below, and they will be hereinafter so designated.

Only two assignments of error are argued in the brief of counsel for defendant. The first of these is that the court below erred in granting appellees' instruction No. 1, which instruction the reporter will set out in full. The objections to this instruction to which we deem it necessary to respond are: First. That on the evidence defendant's negligence, vel non, was a question of fact for the determination of the jury. Second. That "the court left to the jury the question of: First, whether or not the deceased was negligent; second, whether or not that negligence of his contributed to his injury."

The running of the train on the occasion in question, within the limits of the city of Canton, at a greater rate of speed than six miles an hour was unlawful and was negligence per se; and it is manifest from the evidence that, had this train been running at a rate of speed not exceeding six miles an hour, Handy would have gotten across the track and out of danger before it struck him. This being true, there can be no question but that the defendant's negligence at least contributed to Handy's injury, and therefore under our concurrent negligence statute (chapter 135, Laws 1910) it is liable for at least a portion of the damages resulting therefrom. It was proper, therefore, for the court to instruct the jury to find for plaintiffs.

Coming now to the second objection to this instruction, we will assume, for the sake of the argument, that Handy's own negligence contributed to his injury, and that the court, on request of defendant, should have instructed the jury to so find. An examination of the record discloses that the defendant requested fifty-six instructions, fifty-four of which were refused, and in not one of them did it seek to have the jury peremptorily charged to find that Handy's own negligence contributed to his injury, but on the contrary, it sought by several of them to have the jury instructed on the law of contributory negligence, evidently on the theory that it was for the jury to say whether or not Handy was guilty thereof. So that while it may be that the theory upon which the case was tried--that is whether or not Handy was guilty of contributory negligence--was a question of fact for the jury was erroneous, nevertheless that also was the theory upon which the defendant...