Mississippi Cent. R. Co. v. Smith

• Decision Date: 08 June 1936
• Docket Number: 32230
• Citation: 168 So. 604,176 Miss. 306
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENT. R. Co. v. SMITH

168 So. 604

176 Miss. 306

MISSISSIPPI CENT. R. Co. v. SMITH

No. 32230

Supreme Court of Mississippi

June 8, 1936

Division A

Suggestion Of Error Overruled October 19, 1936.

APPEAL from circuit court of Adams county HON. R. E. BENNETT, Judge.

Action by Mrs. Mattie Rife Smith against the Mississippi Central Railroad Company. From a judgment for the plaintiff, the defendant appeals. Affirmed.

Affirmed.

Brady, Dean & Brady, of Brookhaven, for appellants.

If the trial court was correct in not changing venue, then the judgment must be reversed and judgment entered here because (l) Appellant waived the adjudication of liability on the first appeal, and re-opened the whole question of liability (2) Was not entitled to the peremptory instruction granted her; but (3) Appellant was entitled to a peremptory instruction, because: (a) It complied with section 6125, as to the ringing of bell; and (b) Even if statutory signals were not given, appellee and the driver saw the train in ample time to have stopped, and had every notice which signals could have given them.

Appellee again deliberately reassumed the burden of establishing: (1) That she was a guest in the car; (2) That the Liberty Road was a public highway; (3) That the curve in the railroad track approaching the highway crossing was of such a nature as to prevent a traveler's seeing an approaching train except for a short distance; (4) That a traveler's view is obscured by banks or hills, which could have been cut down at reasonable cost; (5) That the whistle was not blown nor bell rung as required by statute; (6) That the train was running more than forty miles an hour; (7) That the automobile was brought to a stop as provided by law and proceeded when there was no reasonable grounds for belief that there was a train approaching, and she was struck and injured.

There never was any denial of allegation (2). The trial court instructed in appellant's favor as to allegations (1), (3), (4), and (6). As to. allegation (5), the trial court both instructed peremptorily and instructed as upon an issue. Yet each and every one of these issues, with the single exception of the last, was adjudicated in her favor upon the first trial. In offering testimony on these features, even if the witnesses had been the same and had given virtually a phonographic transcription of their former testimony on these adjudicated points, the issues were thereby again submitted to the new jury.

Y. & M. V. R. R. Co. v. M. Levy & Sons, 147 Miss. 831, 112 So. 786; I. C. R. R. Co. v. Humphries, 164 So. 22; Norfolk & Southern Ry. Co. v. Ferebee, 238 U.S. 269, 59 L.Ed. 1030; Railway Co. v. Moquin, 283 U.S. 520, 75 L.Ed. 1243; L. & N. R. R. Co. v. State, 65 So. 881; Bales v. Strickland, 139 Miss. 636, 103 So. 432; Brewer v. Browning, 115 Miss. 358, 76 So. 267; Haines v. Haines, 98 Miss. 830, 54 So. 433; True-Hixon Lbr. Co. v. Thorn, 155 So. 181, 158 So. 909; Travelers Ins. Co. v. Inman, 167 Miss. 288, 138 So. 339, 147 So. 663.

Appellee was not entitled to the peremptory instructions granted her.

Appellant was entitled to a peremptory instruction, because it complied with section 6125, as to the ringing of the bell.

Horandt v. Railroad Co., 73 Afl. 93; Rich v. Railway Co., 149 F. 79, 78 C. C. A. 633; Railroad Co. v. Johnson, 157 Miss. 266, 126 So. 827; M. & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113.

Even if statutory signals were not given, appellee and the driver saw the train in ample time to have stopped, and had every notice which signals would have given.

Peters v. Ry. Co., 135 Ala. 533, 33 So. 332; Ry. Co. v. Williams, 137 S.W. 828; Railroad Co. v. Batsel, 140 S.W. 726; Zibbell v. Sou. P. Co., 160 Cal. 237, 116 P. 513; Westerkamp v. Railroad Co., 41 Colo. 290, 92 P. 687; Harten v. Railroad Co., 18 App. Cas. 260; Johnson v. Railroad Co., 61 Ill.App. 522; Railroad Co. v. Kirby, 86 Ill.App. 57; Railroad Co. v. Galligher, 109 Ill.App. 67; Ry. Co. v. DeFrietas, 109 Ill.App. 104; Railroad Co. v. Vremeister, 112 Ill.App. 346; Ry. Co. v. Hirsch, 132 Ill.App. 656; Railroad Co. v. Fraze, 150 Ind. 576, 65 A. S. R. 377, 50 N.E. 576; Ry. Co. v. Baker, 104 S.W. 1182; Artz v. Railroad Co., 34 Iowa 153; Payne v. Railroad Co., 39 Iowa 523; Bloomfield v. Ry. Co., 74 Iowa 607, 38 N.W. 431; Young v. Ry. Co., 57 Kan. 134, 45 P. 583; Smith v. Railroad Co., 87 Me. 339, 32 A. 976; Blumenthal v. Railroad Co., 97 Me. 244, 54 A. 747; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Day v. B. & M. R. R., 97 Me. 528, 55 A. 520; McCarthy v. Railroad Co., 90 A. 490, 54 L. R. A. (N. S.) 140; N. C. Ry. v. Medairy, 86 Md. 168, 37 A. 796, 3 Am. Neg. Rep. 411; Ry. Co. v. Beasley, 117 Md. 270, 83 A. 157; Carlson v. Ry. Co., 296 Minn. 504, 105 N.W. 555, 113 A. S. R. 655, 4 L. R. A. (N. S.), 349; State v. Dettner, 27 S.W. 1117; Hook v. Ry. Co., 162 Mo. 569, 63 S.W. 360; State v. Curley, 70 S.W. 875; Barrie v. Co., 102. Mo.App. 87, 76 S.W. 706; Porter v. Ry. Co., 199 Mo.App. 82, 97 S.W. 880; Schaub v. Ry. Co., 133 Mo.App. 444, 113 S.W. 1163; Waggoner v. Railroad Co., 152 Mo.App. 173, 133 S.W. 68; Dolfini v. Railroad Co., 178 N.Y. 1, 70 N.E. 68; Fiddler v. R. R. Co., 64 A.D. 95, 71 N.Y.S. 721; Madigan v. Railroad Co., 74 N.Y.S. 143, 68 A.D. 123; Smart v. Railroad Co., 81 A.D. 402, 80 N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1131; McKinley v. Ry. Co., 86 N.Y.S. 461, 91 A.D. 153; Stepp v. Ry. Co, 29 N.Y.S. 1008, 80 Hun. 178; Belch v. Railroad Co., 36 N.Y.S. 56, 90 Hun. 477; Montenes v. Ry. Co., 78 N.Y.S. 1059, 77 A.D. 493; Golden v. Ry. Co., 98 N.Y.S. 848, 49 Misc. 521; O'Brien v. Railroad Co., 113 N.Y.S. 329, 129 A.D. 288; Ry. Co. v. Elliott, 28 O. St. 340; Marland v. Railroad Co., 123. Pa St. 487, 16 A. 624, 10 A. S. R. 541; Meyers v. Railroad Co., 150 Pa. 386, 24 A. 747; Urias v. Railroad Co., 152 Pa. 336, 25 A. 566; Holden v. Railroad Co., 169 Pa. 1, 32 A. 103; Ry. Co. v. Wilson, 60 S.W. 438; Ry. Co. v. Skinner, 119 Va. 843, 89 S.E. 887; Cawley v. Ry. Co., 101 Wis. 145, 77 N.W. 179; Stafford v. R. R. Co., 110 Wis. 331, 85 N.W. 1036; Marshall v. R. R. Co., 125 Wis. 96, 103 N.W. 249; Ry. Co. v. Smith, 40 L. R. A. 246. 86 F. 295 (CCA 5th), 30 C. C. A. 58; Ry. Co. v. Andrews, 130 F. 65 (CCA 8th), 64 C. C. A. 399; Waters-Pierce Oil Co. v. Van Eldern, 137 Fed. (CCA 8), 557, 70 C. C. A. 255; Ry. Co. v. Collier, 157 Fed. (CCA 8) 347; Railroad Co. v. Cundieff, 171 F. 319 (CCA 9) 96 C. C. A. 211; Railroad Co. v. Hurlburt, 221 F. 907, 137 C. C. A. (6) 477; Am. Car & Fndry. Co. v. Kinderman. 216 F. 499, 132 C. C. A. (8) 577; Hickey v. Railroad Corp., 8 F.2d (CCA 8) 128; Michelson v. Nebraska, etc., Co., 63 F.2d (CCA 8) 597; Albrecht v. Railroad Co., 108 Wis. 530, 84 N.W. 882; Hook v. Railroad Co.. 162 Mo. 569, 63 S.W. 630; Swart v. Railroad Co., 81 N. Y. A.D. 402, 80 N.Y.S. 906.

If the trial court was correct in not changing the venue, but appellant should not be entitled to judgment here, then it is entitled to reversal, with remand, because the court did not submit all questions of liability to the jury.

On her examination, appellee, who was the plaintiff, had failed to show one single item of expense which she had disbursed in connection with her injuries. Directly questioned as to doctors' bills, she testified to what is generally known to be a fact, that the medical profession does not charge "within the family." The declaration charged that there had been cost of this kind in the sum of five hundred dollars. Her negative testimony utterly eliminated every such item. When her husband was being examined he was asked if her injury had occasioned "her" any expense. The fact that he was her husband did not give him greater knowledge along this line than she had, and the question and answer were improper from this viewpoint, but instead of attempting to itemize even those supposed expenses, he was permitted to make a wild guess of "probably a thousand dollars." Of course, appellant objected to such a statement, and yet the court permitted it to stand, in effect thereby advising the jury that there was an item of one thousand dollars then and there fixed by way of damages. This was gross error, and no more insubstantial than a thousand dollars is insubstantial.

Galtney v. Wood, 149 Miss. 56, 115 So. 117.

Again, when her declaration was filed, upon October 7, 1933, she sued for five hundred dollars for nurses' bills, drug bills, hospital bills, X-ray and physicians' bills, to that date incurred. The declaration is not prospective as to expense of this nature which might be incurred thereafter and it was improper to permit testimony relative to such damage subsequent to October 7, 1933.

Pickwick Greyhound Lines, Inc., v. Silver, 155 Miss. 765, 125 So. 340.

When appellant was being examined in chief, she was asked as to her earning capacity when she had been a trained nurse, which, according to the evidence, was before her marriage. Over appellant's objection, she was permitted to show what she had been earning, fixed at between one hundred and one hundred and fifty dollars per month. Directly in connection with that testimony, she also showed that her husband's health was poor and he had been ordered to give up practice. When, however, Dr. Smith, himself, was on the stand and appellant began to interrogate him relative to income which he had, independent of the fact that his health had forced him to cease active practice, the court defined to permit that examination.

The verdict of the jury is excessive and evinces passion and prejudice. The verdict is excessive for two reasons: (a) it is not justified by the extent of appellee's injury; (b) the jury did not reduce her recovery in proportion to the negligence of which she was guilty.

G M. & N. R. R. Co. v. Arrington, 167 So. 378; Railroad Co. v. Williams, 114 Miss. 238, 74 So. 835; ...