Louisville & N.R. Co. v. Cuevas

• Decision Date: 01 February 1932
• Docket Number: 29748
• Parties: LOUISVILLE & N. R. Co. v. CUEVAS
• Court: Mississippi Supreme Court

139 So. 397

162 Miss. 521

LOUISVILLE & N. R. Co. v. CUEVAS

No. 29748

Supreme Court of Mississippi

February 1, 1932

Division B

1 RAILROADS.

Instruction invoking prima facie evidence statute, where locomotive struck plaintiff, held erroneous, where evidence showed all facts and circumstances respecting occurrence (Code 1930, section 1580).

2 TRIAL.

Rule respecting reading instructions together is not available, if in substantial particular instructions are contradictory or irreconcilable, especially where evidence is seriously conflicting.

3 TRIAL.

Rule respecting reading instructions together does not apply, where there is positive error in instruction, and another instruction is relied on to nullify error.

4. TRIAL. Erroneous instruction invoking prima facie evidence statute, where locomotive struck plaintiff, held not cured by instruction granted at railroad's request (Code 1930, section 1580).

The instructions, if read together, stated that, if jury were reasonably satisfied that all facts in reference to accident had been produced in evidence, then there was no presumption of negligence on part of defendant railroad, and jury should determine question as to whether there was negligence from all facts and circumstances shown by testimony, but, if there was such conflict of facts and theories between testimony of plaintiff and testimony of defendant as to prevent jury from being able to determine how injury was inflicted, then jury might apply inference of negligence against railroad company.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Hancock county HON. W. A. WHITE, Judge.

Action by James Cuevas against the Louisville & N. R. Co. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Smith & Johnston, of Mobile, Alabama, for appellant.

The court erred in giving the plaintiff the prima-facie evidence instruction.

N. O. & G. N. R. Co. v. Waldren, 133 So. 241; Western & Atlantic R. R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445; Wickton v. L. & N. R. R. Co., 45 F.2d 615.

Gex & Gex, of Bay St. Louis, for appellee.

An erroneous instruction can, and will, be cured by one that nullifies it and the instructions must be read as a harmonious whole, and where it is apparent that the case was tried properly on the law and that the instructions of the defendant cured or nullified errors in the instructions of the plaintiff, no possible harm is done.

City of Jackson v. Lewis, 142 Miss. 806; Hemming v. Rawlings, 144 Miss. 643; Alabama & V. R. Co. v. Fountain, 145 Miss. 515; Brewer v. Automobile Sales Co., 147 Miss. 603; Carlisle v. City of Laurel, 156 Miss. 410; Friedman v. Allen, 152 Miss. 377.

OPINION

Griffith, J.

Appellee, in attempting to cross the railroad tracks of appellant at a public highway crossing, was struck by a locomotive and injured. All the facts and circumstances of the occurrence were produced in evidence by numerous witnesses for both sides, but the evidence was conflicting on every material fact and circumstance. The case was tried before the publication of the opinion of this court in Railroad Co. v. Walden, 160 Miss. 102, 133 So. 241, and the trial judge, following the previous holdings of this court, granted unto plaintiff the following instructions bearing upon the so-called "prima facie evidence" statute (Code 1930, section 1580).

"The court instructs the jury for the plaintiff that if the plaintiff has proven by the preponderance of the evidence that he was injured by the running and operating of a train of the defendant herein, under the law, such proof is prima facie evidence that the injuries received by the plaintiff were sustained as a result of the negligence of the defendant in the operating and running of its train."

"The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that the plaintiff herein was injured by the running and operating of a train of defendant company, if, after you have heard all the proof, you can determine therefrom whose negligence was the cause of the injury, then you must decide this case upon the facts; but if there is such a conflict of facts and theories between the testimony of plaintiff and the testimony of defendant as to prevent you from being able to determine how the injury was inflicted, then you may apply the inference of negligence against the railroad company and render a verdict for the plaintiff."

These instructions were correct according to the later decisions of this court and up to the time of the opinion in the Walden case, decided on March 23, 1931. But the observations of the court in respect to the practical effect of the use of the quoted instructions had been such as to convince the majority of the court that, where all the facts are in evidence instructions such as these are in conflict with constitutional guaranties. ...