Illinois Cent. R. Co. v. Humphries

• Decision Date: 11 June 1934
• Docket Number: 30905
• Citation: 155 So. 421,170 Miss. 840
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. HUMPHRIES

155 So. 421

170 Miss. 840

ILLINOIS CENT. R. CO. v. HUMPHRIES

No. 30905

Supreme Court of Mississippi

June 11, 1934

Division A

1. MASTER AND SERVANT.

Recovery under Federal Employers' Liability Act must be on basis of employer's negligence (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

2 TRIAL.

Trial judge is invested with sound discretion to direct a verdict when plaintiff's evidence is unreasonable.

3. MASTER AND SERVANT.

Verdict should be directed for employer where cause of injury of deceased servant rests solely on conjecture.

4. MASTER AND SERVANT.

Whether railroad was negligent in piling cinders too close to track held for jury in action for death of brakeman allegedly knocked from footboard of locomotive tender by coming in contact with cinders (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

5. MASTER AND SERVANT.

Whether negligent piling of cinders too close to track was proximate cause of death of brakeman allegedly knocked from footboard of locomotive tender by coming in contact with cinders held for jury (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

6. MASTER AND SERVANT.

Assumption of risk is a defense to action based on Federal Employers' Liability Act (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

7. MASTER AND SERVANT.

Whether brakeman assumed risk of railroad's placing of cinders too close to track a few days before brakeman was knocked from footboard of locomotive tender by coming in contact with cinders containing "clinkers" held for jury "clinkers" being stony pieces of matter vitrified or fused from impurities in burning coal (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

8 WITNESSES.

In action for death, communications made by decedent to his physician about a year before his death held privileged (Code 1930, section 1536).

9. EVIDENCE.

In action for death of brakeman allegedly killed by coming in contact with cinders containing clinkers alongside track, admission in evidence of clinkers which witness testified were like the ones in the cinders along the track held not error (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

10. DEATH.

Recovery in action for death under Federal Employers' Liability Act is measured, not by decedent's earnings, but by portion that might reasonably have been bestowed on beneficiaries had decedent not been killed (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

11. DEATH.

Fifty thousand dollars held excessive for death of brakeman of forty-six earning from employment and outside activities three hundred fifty dollars to five hundred fifty dollars monthly and leaving widow of forty-three and two sons aged eleven and thirteen (Federal Employers' Liability Act [45 U.S.C. A., sections 51-59]).

12. APPEAL AND ERROR.

Where damages allowed in death action are excessive, and record is so confused that damages cannot be fixed on appeal, judgment not containing other error will be affirmed as to liability but reversed and remanded for trial on question of damages.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Holmes county HON. S. F. DAVIS, Judge.

Action by Mrs. Lucy Humphries, executrix of the estate of Tom S. Humphries, deceased, against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed on liability, and reversed and remanded for trial on damages.

Affirmed on liability; reversed and remanded on damages.

Burch, Minor & McKay, of Memphis, Tenn., and A. M. Pepper, of Lexington, for appellant.

This case is concededly under the Federal Employers' Liability Act.

Recovery is on basis of negligence only.

D. L. & W. R. Co. v. Koske, 279 U.S. 7; N. O. & N. E. R. Co. v. Penton, 135 Miss. 571.

Assumption of risk is a complete defense as to ordinary risks of employment and also extraordinary risks which are obvious.

Jacobs v. So. R. Co., 251 U.S. 229; D. L. & W. R. Co. v. Koske, 279 U.S. 7; G. & S. I. R. Co. v. Hale, 140 Miss. 833; L. & N. R. Co. v. Russell, 164 Miss. 538.

Applicable principles of common law as interpreted and applied in federal courts control--conflicting state laws and decisions superseded.

Y. & M. V. R. Co. v. McCaskell, 118 Miss. 633; M. & O. R. Co. v. Clay, 156 Miss. 477; N. O. & N. E. R. Co. v. Harris, 247 U.S. 367; Pa. R. Co. v. Chamberlain, 77 L.Ed. 503.

Directed verdict should be granted even though some conflict in evidence when in exercise of sound discretion verdict would be set aside on motion for new trial.

Pa. R. Co. v. Chamberlain, 77 L.Ed. 503; Small Co. v. Lamborn & Co., 267 U.S. 248.

Incredible evidence or evidence of impeached witness should be disregarded.

Southern Ry. v. Walters, 284 U.S. 190.

If cause of injury uncertain and can only be conjectured, directed verdict should be for defendant.

A. T. & S. F. R. Co. v. Saxon, 284 U.S. 459.

Mississippi privileged communications statute is not a rule of evidence but a rule of substantive law and therefore inapplicable.

N. O. & N. E. R. Co. v. Harris, 247 U.S. 367; Y. & M. V. R. Co. v. Mullins, 249 U.S. 531; Central Vermont R. Co. v. White, 238 U.S. 507.

Placing in evidence cinders obtained elsewhere inadmissible.

Ahearn v. U.S. 159 F. 606.

Momentary forgetfulness does not eliminate assumption of risk.

Jacobs v. Southern Ry., 241 U.S. 229.

Conflicting instructions require reversal.

Y. & M. V. R. Co. v. Hawkins, 159 Miss. 775.

The measure of damages is entirely pecuniary.

Michigan Central v. Vreeland, 227 U.S. 59; Am. R. Co. v. Didrickson, 227 U.S. 145.

Extent of loss of pecuniary benefits must be proved.

K. C. R. Co. v. Leslie, 238 U.S. 599; R. R. v. Anderson, 134 Tenn. 683.

P. P. Lindholm, of Lexington, and J. G. Holmes, of Yazoo City, for appellee.

Under the Federal Employers' Liability Act, which is applicable to this case, the carrier is liable for death resulting by reason of any defect or insufficiency, due to its negligence, in its track or road bed.

45 U.S.C. A., sec. 51.

The doctrine of assumption of risk is applicable, and under this doctrine the employee assumes the ordinary risks of the service, that is, those which are not created by the master's negligence, but does not assume the extraordinary risks, or those which are created by the master's negligence, unless he knows and appreciates the danger thereof.

Y. & M. V. R. R. Co. v. Dees, 121 Miss. 439; Gulf, M. & N. R. Co. v. Walters, 161. Miss. 313; Looney v. Norfolk & Western Ry. Co., 48 A. L. R. 806; Chesapeake & O. Ry. Co. v. DeAtley, 241 U.S. 310, 60 L.Ed. 1016; Tex. & Pac. Ry. Co. v. Swearingen, 196 U.S. 51.

Instructions must be considered together, and if on the whole it appears that the law was fairly embodied in the instructions, the verdict will be upheld.

Y. & M. V. R. R. Co. v. Williams, 87 Miss. 344; Miss. & R. Co. v. Hardy, 88 Miss. 732; Y. & M. V. R. R. Co. v. Kelly, 98 Miss. 367; I. C. R. Co. v. Ray, 165 Miss. 885.

An appellant cannot complain of error in an instruction given at his instance, nor of a conflict in instructions produced by an erroneous one so given, nor of an instruction more favorable to him than the law warranted.

Clisby v. M. & O. R. R. Co., 78 Miss. 937, 29 So. 913.

Jury's conclusion on conflicting evidence held conclusive on appeal.

Western & A. R. v. Hughes, 278 U.S. 496; I. C. R. R. Co. v. Ray, 165 Miss. 885.

The court is always reluctant to reverse a finding of fact by a jury, and it is only done in rare cases, where the verdict of the jury is contrary to the overwhelming weight of convincing evidence.

Greer v. Pierce, 147 So. 303; M. & O. R. R. Co. v. Bennett, 127 Miss. 413.

There must be a clear conviction that error has resulted from the action of the court below, or the judgment will be affirmed.

Chicago Junction R. R. Co. v. King, 222 U.S. 222; Seaboard Air Line Ry. Co. v. Moore, 228 U.S. 433.

The damages awarded by the jury are not excessive.

Looney v. Norfolk & Western Ry. Co., 48 A. L. R. 806; Mo. Pac. R. R. Co. v. Bushey, 20 S.W.2d 614, 251 U.S. 728.

Damages under the Employers' Liability Act should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased employee, and, in arriving at such damages, the present value of such future benefits should be awarded.

Chesapeake & O. Ry. Co. v. Kelly, 241 U.S. 485.

In arriving at the future benefits for which compensation is to be awarded, the jury may take into consideration those things which might reasonably affect such benefits.

Gulf, M. & N. R. Co. v. Wood, 164 Miss. 775.

The evidence to support the verdict in this case would, as a matter of fact, justify even a larger verdict than that rendered by the jury.

Gulf, M. & N. R. Co. v. Wood, 164 Miss. 765; Chesapeake & O. R. R. Co. v. Kelly, 241 Miss. 485; L. & N. R. R. Co. v. Holloway, 246 U.S. 525; Looney v. Norfolk & W. R. Co., 48 A. L. R. 806; Mo. Pac. R. Co. v. Bushey, 180 Ark. 19, 20 S.W.2d 614, 251 U.S. 728, 74 L.Ed. 1145.

Argued orally by C. N. Burch and A. M. Pepper, for appellant, and by P. P. Lindholm and J. G. Holmes, for appellee.

OPINION

McGowen, J.

The appellee, as executrix of the estate of her husband, Tom S Humphries, deceased, brought an action at law against the appellant, the Illinois Central Railroad Company, for damages because of the death of her testate, alleging that while performing his duties as brakeman for said company he was killed, the proximate cause of his death being the negligence of appellant company. The railroad company and Humphries, its employee, were engaged in interstate commerce, and this action is...