Illinois Cent. R. Co. v. Williams

Decision Date06 December 1926
Docket Number25914
CourtMississippi Supreme Court
PartiesILLINOIS CENT. R. CO. et al. v. WILLIAMS. [*]

Division B

1 RAILROADS. Railroad's negligence as to child at crossing held for jury.

Evidence in action against railroad for injuries to child, struck by train at public crossing, held, to present question for jury.

2 RAILROADS. Railroad must regulate speed of train over frequented crossing with reference to conditions.

Railroad bad duty to regulate speed of train over public crossing in a municipality much frequented by traveling public, with reference to existing conditions.

3 RAILROADS. Railroad is charged with notice of parked freight cars, obscuring view of engineer as to persons on crossing.

Railroad is chargeable with notice of parked freight cars on passing track near public crossing, in violation of one of its rules made for safety of traveling public, and that cars so situated will obscure view of engineer and fireman as to person entering on such crossing.

4. DAMAGES. Child, of less than three years may recover for mental anguish.

Instruction authorizing recovery for mental anguish, endured by child of less than three years as result of injury, held proper, since child is capable of suffering mental pain as result of physical injury.

5. RAILROADS. Instruction on railroad's duty to maintain lookout in approaching crossing held applicable.

Where testimony, in action against railroad for injuries, raised issue for jury relative to whether engineer and fireman were on lookout, instruction that defendant had duty to maintain reasonable lookout in approaching public crossing in municipality held applicable.

6. DAMAGES. Twenty thousand dollars for fractured skull, suffered by child, and from which there had been seeming recovery, held excessive, and reduced to fifteen thousand dollars.

Twenty thousand dollars for injuries to child less than three years, consisting of fractured skull from which there had been a seemingly complete recovery, held excessive, and reduced to fifteen thousand dollars.

7. DAMAGES. Injury must be proven with reasonable certainty.

An injury for which recovery can be had must be proven with reasonable certainty.

HON. T. E. PEGRAM, Judge.

APPEAL from circuit court of Lafayette county, HON. T. E. PEGRAM, Judge.

Action by Murray Williams, by his father and next friend, E. L. Williams, against the Illinois Central Railroad Company and others. Judgment for plaintiff, and defendants appeal. Affirmed on condition that plaintiff enter remittitur; otherwise reversed and remanded for a new trial on question of damages.

Judgment affirmed with remittitur; otherwise cause reversed and remanded.

May, Sanders & McLaurin and R. V. Fletcher, for appellant.

I. It was error for the court to refuse the peremptory instruction requested by each of the defendants. The facts show that at the time and place when and where the appellee was injured the train that struck him was being operated in a lawful manner. The testimony makes it clear that the engineer gave the necessary signals of the approach of the train; that he and the fireman were both keeping a lookout and that the little boy, the appellee, suddenly appeared upon the track in front of the train so close that it was impossible for the engineer to prevent striking him.

If the engineer or the fireman saw the child, or could have seen him, in time to have prevented striking him and the engineer had neglected to do everything possible to prevent striking him, liability would have attached under the last clear chance doctrine; but there is no dispute in the record that the engineer and fireman were keeping a lookout; that they did not see the child and could not see him until it was too late to do anything to avert the accident. The rule is too well settled to justify extended citation that before the railroad company can be held liable for failure to exercise every effort to avert injury the peril of the injured person must be apparent to those in charge of the operation of the train, or else that it could have been known by the exercise of the proper lookout. There is no testimony in the record to show the existence of such a condition at the time of this accident.

The railroad company is not an insurer of the safety of persons on crossings, even though they be children of tender years. The operation of trains at a reasonably high rate of speed through small villages, such as Taylor, is necessary and recognized by law. It would seem from this whole record that the negligence of Murray Williams' parents, which may not be imputed to him, and not the alleged negligence of the railroad company and the engineer, is the real cause of his injury.

What constitutes a dangerous and rapid rate of speed is more or less uncertain, depending upon the circumstances of each particular case. If, as we contend, the train on this occasion was being lawfully operated and nothing could have been done by the engineer to avert the accident after the child appeared upon the crossing, then both defendants were entitled to the peremptory instruction as requested and it was error for the court to refuse to so instruct the jury.

II. The instructions for plaintiff were erroneous and misleading. The fourth instruction given for the plaintiff, as it appears in the record, was on the measure of damages. By that instruction the court told the jury that if they found for the plaintiff, in assessing damages they should take into consideration, among other things, "any mental and physical pain and suffering which the testimony may show he has endured, or will endure, if any, as the proximate result of the negligence of defendant."

The first instruction given for the plaintiff was to the effect that he was not guilty of any negligence in going upon the crossing where he was struck and injured. This instruction was doubtless given upon the theory that a child not quite three years old was incapable of being guilty of contributory negligence because at that age he had not sufficient mental capacity to think about, appreciate and understand things; and yet in the same breath the court instructed the jury that the plaintiff was entitled to Compensation for mental anguish which he had endured. N. K. N. T. R. R. Co. v. Miller, 61 S.W. 978, 25 Tex.App. 460. For discussion of mental anguish, see Hancock v. Western Union Telegraph Co., 69 L. R. A. (N. C.) 403.

If the instruction in this case had limited the right of recovery to physical pain endured and to mental suffering which might hereafter result and such permanent injuries as had been shown, it might not be open to criticism, but when the court told the jury that they might award compensation for mental anguish already endured, an element of damages was injected into the case which could not possibly exist. This erroneous instruction may in part account for the very large verdict.

The next instruction for the plaintiff undertook to define the degree of care devolving upon the railroad company in the operation of its trains through the village of Taylor and over the crossing where the accident took place. This instruction in substance told the jury that the servants of the railroad company in charge of its train were under duty to maintain a reasonable lookout when approaching the crossing in question and to run the freight train over such crossing at a reasonable rate of speed, and if the jury should find that they negligently breached their duty and the plaintiff was struck as the proximate result thereof, they should find for the plaintiff. The special vice in this instruction lies in the fact that it left to the jury to decide a question that was not in dispute; namely, whether or not the defendants failed to keep a lookout when approaching the crossing. Both the engineer and fireman testified that they were in their proper places in the cab keeping a sharp lookout and did not and could not see Murray Williams until he was right on the crossing in front of the train.

This court in common with other courts has on more than one occasion held that a jury is not warranted in disregarding uncontradicted testimony where there is nothing to impeach the testimony, and the trial court is not warranted in submitting to the jury for determination a fact not in dispute. See N. O. M. & C. v. Harrison, 105 Miss. 18; Stewart v. Coleman, 81 So. 653. This instruction, therefore was erroneous, misleading and prejudicial to the defendants.

For cases where it has been held error to give instructions not predicative of evidence see the following: Mobile, etc., R. R. Co. v. Francis, 9 So. 508; King v. Levy, 13 So. 282, 13 So. 283; Orrick v. Stewart, 12 So. 824; Malone v. Robinson, 12 So. 709; Trager v. Shepherd, 18 So. 122; Carraway v. Wallace, 17 So. 930; Robinson v. Spears, 21 So. 554; Alabama, etc., R. R. Co. v. Overstreet, 85 Miss. 78, 37 So. 819; Alabama, etc., R. R. Co. v. Hayne, 76. Miss. 538, 24 So. 907; Southern R. R. Co. v. Vaughn, 86 Miss. 367, 38 So. 500; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Am. Cent. Ins. Co. v. Antrim, 88 Miss. 518, 41 So. 257; Mobile, etc., R. R. Co. v. Jackson, 92 Miss. 517, 46 So. 142; Alabama, etc., R. R. Co. v. Baldwin, 52 So. (Miss.), 358; Bank of Newton v. Simmons, 96 Miss. 17, 49 So. 616; N. O., etc., R. R. Co. v. Williams, 96 Miss. 373, 53 So. 619; Cumberland Tel. & Tel. Co. v. Cosnahan, 105 Miss. 615.

III. The verdict of the jury was so excessive as to indicate passion, prejudice, or undue sympathy and should have been set aside. It is well settled law that a verdict may not be founded upon speculation and conjecture. There must be a reasonable certainty that the damage claimed has resulted or will result from the injury complained of. The...

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