Mardis v. Yazoo & M.V.R. Co.

• Decision Date: 05 November 1917
• Docket Number: 19632
• Citation: 115 Miss. 734,76 So. 640
• Parties: MARDIS v. YAZOO & M. V. R. CO
• Court: Mississippi Supreme Court

76 So. 640

115 Miss. 734

MARDIS v. YAZOO & M. V. R. CO

No. 19632

Supreme Court of Mississippi

November 5, 1917

Division A

APPEAL from the circuit court of Jefferson county, HON. R. E JACKSON, Judge.

Suit by C. M. Mardis against the Yazoo & Mississippi Valley Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and cause remanded.

Ernest E. Brown, for appellant.

The lower court committed reversible error in giving instructions Nos. 1 and 3 for defendants. These instructions read as follows: "No. 1. The court instructs the jury that if the evidence leaves them in doubt and uncertain as to how the fire started, they should find for the defendant." "No. 3. The court instructs the jury for the defendant that if the evidence leaves them in doubt and uncertain as to whether the fire was caused by the locomotive of defendant or by some other accident or by some other setting fire to the store, they must find for defendant."

We submit the above instructions imposed upon the plaintiff too great a burden, required him to remove all doubt from the minds of the jury as to the origin or cause of the fire that destroyed plaintiff's property, and constitute reversible error according to two well-considered and very recent decisions of this learned court, to wit: Gentry v. Gulf &amp Ship Island R. Co., 109 Miss. 66, 67 So. 849, and Stevenson v. Y. & M. V. R. R. Co., 112 Miss. 899, 74 So. 132.

In Gentry v. Gulf & Ship Island R. R. Co., 109 Miss. 66, the following instruction was given: "The court instructs the jury for the defendant that if they are in doubt as to whether plaintiff was injured or not in the derailment of the train, and this doubt cannot be removed by a clear preponderance of the evidence in the case, the verdict of the jury should be 'we the jury find for the defendant.'"

Justice COOK in delivering the opinion of the court said: "This instruction imposes on a plaintiff a greater burden than the law imposes on the state in a criminal trial. In a criminal trial the state must prove its case beyond all reasonable doubt. By this instruction the plaintiff must remove all doubt from the minds of the jury and that is not all; the plaintiff must remove all doubt, 'by a clear preponderance of the evidence." The plaintiff must establish his right to recovery by a preponderance of the evidence. Whenever the jury is satisfied that the plaintiff has proven his case, the plaintiff is entitled to recover. The law imposes on the plaintiff no burden to remove all doubts from the minds of the jury." In Stevenson v. Y. & M. V. R. R. Co., 112 Miss. 899, the issue was whether the railroad locomotive or some other agency started the fire that damaged plaintiff, and the court instructed the jury "if you are in doubt about this proposition and cannot say of a certainty which was the cause of the damage, then it is your duty under the law to return a verdict for the defendant." Justice ETHRIDGE in delivering the opinion of the court very forcibly and properly said: "This instruction placed a greater degree of proof upon the plaintiff than the law requires, and constitutes reversible error. It is stronger than the instruction condemned in the case of Gentry v. Gulf & Ship Island R. R. Co., 109 Miss. 66, 67 So. 849. The instruction in this case not only requires all doubts to be overcome by the plaintiff by a preponderance of the testimony, but by it the jury must say 'of a certainty' which kind of fire caused the damage. But for this erroneous instruction the case would have been affirmed, but the giving of it is reversible error, and the cause is therefore reversed and remanded."

Instructions Nos. 1 and 3 for defendant in the instant case required plaintiff to remove all doubt and uncertainty from minds of the jury that defendant's locomotive fired plaintiff's property and that no other agency could have caused the fire, or in other words the instructions placed upon plaintiff the burden of proving to a certainty that defendant's engine set out the fire, just as did the above instruction in Stevenson v. Y. & M. V. R. R. Co., which Justice ETHRIDGE properly held constituted reversible error. We confidently contend that for the errors pointed out, this case should be reversed and remanded, so plaintiff's claim may be submitted to a jury of his peers upon legal and competent evidence and instructions and free of the irrelevant and incompetent testimony that aroused the prejudice naturally of the jury against defendant in the trial.

Mayes, Wells, May & Sanders, for appellee.

Since the issue as to the liability of the defendant for the result of the fire was submitted to and determined by the jury solely upon circumstantial evidence and upon conflicting testimony, this court should not disturb their verdict. It is well to consider all of the facts and circumstances in evidence. In the case of Wood v. Gibbs, 35 Miss. 559, this court speaking through HANDY, J., used the following language:

"As to the sufficiency of the evidence to sustain the verdict upon the material questions in controversy, the case is one showing conflicting testimony, and depending much upon the weight to be given to the statements of the respective witness, and upon inferences which might be drawn from the facts proved, and from the conduct of the parties. Such cases are peculiarly within the province of the jury, and verdicts should not be disturbed in them, but for clear and manifest error in the ruling of the court."

The finding of the jury for the defendant upon the question of liability for the fire, being a question of fact, and supported by sufficient evidence, should not be disturbed by the court. If a verdict is supported by evidence, and the court cannot say the jury was unwarranted in reaching its conclusion, it will not be disturbed, although a finding for the opposite party would have been more satisfactory to the court. Yazoo, etc., R. Co. v. Williams, 67 Miss. 18; K. C., etc., R. Co. v. Cantrell, 70 Miss.. 329; Moffett v. Robinson, 2 Miss. Dec. 704; Woodson et al. v. Owens, 12 So. 207; Terry v. State, 12 So. 544; Dickson v. Parker, 3 H. (Miss.) 219; Lea v. Guice, 13 S. & M. (Miss.) 656; Wane v. Kirkman, 13 S. & M. (Miss.) 599; Prewitt v. Coopwood, 30 Miss. 369.

Where the evidence is entirely circumstantial, as it was in the case at bar, the verdict will not be set aside unless manifestly wrong. Holton v. Adcock, 27 Miss. 758; I. C. R. R. Co. v. Schultz, 87 Miss. 321; Watson v. Dickens, 12 S. & M. (Miss.) 608; Kelley v. Miller, 39 Miss. 17.

In view of the purely circumstantial evidence submitted by the plaintiff in the court below to establish the origin of the fire, and to fix responsibility upon the defendant for its occurrance, and the conflicting testimony upon this vital point, we submit that the verdict of the jury on the facts in favor of the defendant should not be disturbed.

OPINION

HOLDEN, J.

This is an appeal from the judgment of the circuit court of Jefferson county, in which court the plaintiff below, appellant here sued the defendant Railroad Company for damages on account...