Jackson Light & Traction Co. v. Taylor

• Decision Date: 13 November 1916
• Docket Number: 17656
• Citation: 112 Miss. 60,72 So. 856
• Parties: JACKSON LIGHT & TRACTION COMPANY v. TAYLOR
• Court: Mississippi Supreme Court

72 So. 856

112 Miss. 60

JACKSON LIGHT & TRACTION COMPANY v. TAYLOR

No. 17656

Supreme Court of Mississippi

November 13, 1916

APPEAL from the circuit court of Hinds county, HON. E. L. BRIEN Presiding Judge.

Suit by Ruby Taylor, by her next friend, Dick Taylor, against the Jackson Light & Traction Company. From a judgment for plaintiff, defendant appeals.

This action was instituted in the circuit court of Hinds county by Ruby Taylor, a minor of the age of ten years, suing by her next friend, to recover damages for the alleged negligence of the Jackson Light & Traction Company in carrying plaintiff beyond her destination. Appellee was allowed to recover punitive damages, and from a judgment awarding the sum of five hundred dollars appellant appeals.

The record shows that the plaintiff and another little girl by the name of Tutt were in company with plaintiff's mother Mrs. Ada Taylor; that the three boarded one of the regular street cars of appellant at the Old Capitol station in the city of Jackson and paid three fares for their transportation north to Euclid street. According to the testimony of Mrs Taylor, when the car was about half way from Fairview to Euclid, and half a block before they reached their destination, "the little girls gave the signal;" that this signal was given by raising the hand, and was the usual signal then employed by the company; that although they gave the signal, the car did not stop at Euclid street, but ran for half a block beyond the point where they desired to alight from the car; that when she saw they had passed the stopping place, she "got up and began walking towards the back end, and he (the conductor) spoke in this manner 'Do you want to get off at this stop?' and I says 'I do; will you please back up?' and he says, 'No, you will get off right here.'" She further testified that the conductor "spoke rough;" that he refused to back the car to Euclid crossing, saying that "he didn't have time;" that the street in the middle of the block where the car actually stopped was muddy and wet, and that in getting off the car she and the little girls had to walk through the mud and water, and in doing so the plaintiff, Ruby Taylor, "got her feet wet, and it gave her a terrible bad cold." Mrs. Taylor further testified that the time of this complaint was about 12 o'clock in the day, and in the month of January of the year preceding the trial of the case, which was had at the February, 1914, term of circuit court. From this it appears that the little girl was about nine years old at the time of the alleged injury.

Ruby Taylor, as a witness in her own behalf, testified that, "I throwed up my hand and signaled;" that the conductor did not stop, but carried them about half a block beyond; that they "asked him to back back, and he says he can't do it; if you are going to get off this car, get off right here;" that she walked half a block in the mud and "it made me sick." On cross-examination she admits that she did not have to go to bed, and did not require the services of a physician.

After the introduction of these two witnesses the plaintiff rested; and the defendant thereupon introduced the conductor and motorman who were in charge of the car, and also a Mr. Johnson, a passenger, all of whom testified that the signal was not given until the Euclid street corner was reached, and that the car was promptly stopped thirty or forty feet beyond Euclid street. The testimony of the witnesses for the plaintiff and defendant directly conflicted as to when the signal was given, as well as the condition of the street at the point the car stopped. The defendant complains of the following instructions given the plaintiff:

(1) "The court instructs the jury for the plaintiff that it is the duty of the defendant company to keep a lookout for signals and to stop its cars at all regular crossings on the usual signal being given, and if you believe from the evidence in this case that the agents of defendant in charge of the car in question did not stop at Euclid street when signaled so to do, but carried plaintiff beyond said stop, and did not back back when requested so to do, then plaintiff is entitled to recover such damages as the jury may believe from the evidence she has suffered thereby."

(2) "The court instructs the jury for the plaintiff that if in this case you believe from the evidence that plaintiff or her mother signaled the defendant's conductor in charge of the car in question to stop at Euclid street in the usual manner, and that defendant's agents in charge of the car did not stop at said point, but carried plaintiff beyond and refused on request to back to Euclid street, and told them to get off where they were, which place was muddy, and that the conduct of the conductor in thus refusing to back his car and forcing plaintiff to alight in the mud was characterized by insult, oppression, or willful wrong, then the jury may, in addition to actual damages, if any, assess damages by way of punishment in such an amount as they may believe warranted by the evidence not to exceed the sum of two thousand dollars."

Appellant also contends that if there is any liability at all, the verdict is grossly excessive.

Case reversed and remanded.

Wells, May & Sanders, for appellant.

Appellee's counsel undertake to justify their first instruction by arguing that it does not assume the existence of material facts at issue, or if it does, they say, "the instructions for the defendant were very ample on this point." The court will note that the instruction assumes the existence of two material facts at issue, viz: That the car was signalled to stop at Euclid street and that request was made to have the car back back to Euclid street, the language of the instruction being, "did not stop at Euclid street when signalled so to do, but carried plaintiff beyond said stop and did not back back when requested so to do, then plaintiff is entitled to recover damages, etc." Of course this instruction should have been modified so as to carry the qualification, if the jury believed from the evidence, that the car was signalled to stop and that the request was made to have the car back up to the corner. There was direct conflict in the testimony on both these points, and the rule is too well settled in this state to admit of debate, that an instruction which assumes the existence of a material fact which is at issue, is reversible error.

The other instruction for the appellee is fatally erroneous, even if it be conceded that the case is one for the infliction of punitive damages, because it is predicated of a state of facts which is conclusively negatived by the testimony. That is, the question of whether there was insult offered to the appellee.

Among the more recent cases dealing with the questions presented, are the following: In the case of Y. & M. V. R. R. Co. v. Dyer et al., 59 So. 937, the judgment was reversed, among other reasons, because an instruction was given predicated on the theory of the case not supported by the testimony. The case of Lackey v. St. Louis & S. F. R. Co., 59 So. 97, presents another recent case where the judgment of the court below was reversed because an instruction was given which eliminated one of the issues in the case.

The case of the A. & V. Ry. Co. v. Cox, 63 So. 334, illustrates the rule that a reversal is required where there is conflict in instructions, the instruction given for the plaintiff being erroneous and not cured by a correct instruction given for the defendant.

In Newman Lumber Co. v. Dantzler, 64 So. 931, this court reversed the judgment of the lower court, because of an instruction which submitted to the jury an issue not made by the testimony in the case.

In the case of McNeill v. Bay Springs Bank, 56 So. 333, this court reversed the case because of the erroneous instruction, notwithstanding a correct instruction was given for the other side, the court declaring that the instructions presented a conflict which amounted to reversible error, where there was conflict in the testimony.

The rules thus wisely announced in these several cases, are in harmony with the decisions of this court from the earliest time. Counsel cite in support of the general proposition that this was a case for punitive damages, the cases of Railway Light & Power Co. v. Lowery, 79 Miss. 431; R. R. Co. v. Moreland, 104 Miss. 312.

M. & C. R. R. Co. v. Whitfield, 44 Miss. 466, relied on by counsel, is a decision of Judge TARBELL and approves an instruction and thereby declares a rule of law, which we submit was never the law before that decision was rendered, and has not been the law at any time since, in Mississippi. The citation of this case in support of their contention perhaps illustrates, more forcibly than any argument offered by us could do, the utter absence of any real authority in justification of their contention.

The case of R. R. Co. v. Moreland, is so entirely different from the question we are discussing, that we are surprised that counsel should have referred to it, except as it is a case against a common carrier where punitive damages were held proper. No question was there involved as to the form of the instruction, and moreover, the facts in that case were wholly unlike the facts in this case. In that case the passenger was carried beyond her stop and requested the conductor to permit her to disembark from the train at the point at which she discovered that she had been carried beyond her station. The conductor refused to do this and forced the passenger to go to the next station, and in the colloquy with the passenger the conductor, as the record showed, sneeringly said to the passenger, "You can sue the company." In the instant case, the plaintiff's testimony showed...