Mississippi Cent. Railroad Co. v. Hanna

• Decision Date: 30 January 1911
• Docket Number: 14668
• Citation: 54 So. 74,98 Miss. 609
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENTRAL RAILROAD COMPANY v. H. M. HANNA

54 So. 74

98 Miss. 609

MISSISSIPPI CENTRAL RAILROAD COMPANY v. H. M. HANNA

No. 14668

Supreme Court of Mississippi

January 30, 1911

APPEAL from the circuit court of Forrest county, HON.W. H. COOK Judge.

Suit by H. M. Hanna against the Mississippi Central Railroad Comany. Judgment for plaintiff and defendant appeals.

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

Reversed and remanded.

Jeff Truly, for appellant.

The only instruction asked by the defendant in the court below presenting its theory of the facts, was modified by the court, and having been modified was declined by the defendant and not read to the jury.

Thus the defendant was left without any instruction stating its hypothesis of the facts and its contentions based upon the evidence to the jury. The only instruction left the defendant was the mere general instruction applicable to the state of case made. It is thoroughly well established in this state that every defendant, even a criminal accused of the most dastardly of crimes has a right to embody his hypothesis of defense in an instruction and have it presented to the jury even though it be based alone upon his own unsupported story. The circuit judge has no authority to reject it in advance. We understand the rule to be that where an instruction is correctly drawn, it is the duty of a circuit judge to either give or refuse the same as offered. If he thinks the instruction as presented is erroneous he has the power though it is not his duty, of modifying or reject it. If he modifies the instruction as presented and the party asking the same still uses it he is held to have waived the exception, which otherwise the action of the court would give him. Railroad Company v. Byrd, 89 Miss. 319; Railroad Company v. Suddoth, 70 Miss. 265.

Recognizing this rule upon the modification by the court of the instruction asked the defendant declined to use the same or read the same to the jury and decided to stand upon the error in the modification. Hence, having adopted the course pointed out by the supreme court in the case of Railroad Company v. Hardy, 88 Miss. 746, appellant is entitled now to insist upon the modification as a defense.

The first inquiry then is: Was the instruction as asked correct? For the convenience of the court the instruction is herein copied in full as originally asked:

"The court instructs the jury for the railroad company that it is the duty of anyone approaching a railroad crossing to use due care and caution to avoid injury, that while it is not necessary for the driver approaching a crossing to come to a full stop and look and listen, it is necessary for him to use such care as an ordinarily prudent person would take to insure his safety, and in this case, if they believe from the evidence that Mrs. Stella Hanna, the driver of the rig in question could have avoided the accident by looking and listening for approaching trains, then they must find for the railroad company, even though the employes in charge of the train were also guilty of negligence."

That instruction recognizes the rule that it is not necessary for one approaching a railroad crossing to come to a full stop and look and listen and so states. It further states, however, that it is necessary for such approaching person to use such care as an ordinarily prudent person would take under similar circumstances. It then predicates the right to a verdict in favor of the defendant upon the question of whether the jury "believe from the evidence" that the driver approaching the crossing "could have avoided the accident by looking and listening for the approaching train," that they must find for the railroad company. We submit, therefore, that this instruction as asked was correct and should have been granted without modification.

It is undoubtedly the rule that everyone approaching the public railroad crossing must use some degree of care and caution. Up to a few years ago in this state the rigid rule of "stop, look and listen" obtained. This was wisely modified and the rule now obtaining is accurately expressed in the instruction asked and refused as above quoted.

Without amplifying citations see: Railroad Company v. Crominarity, 86 Miss. 464; Hopson v. Railroad Company, 87 Miss. 789; Jackson v. Railroad Company, 89 Miss. 32.

The instruction asked was copied from the opinion of the supreme court in the Jackson case, supra. Says the court, speaking through Mayes, Chief Justice:

"It was not necessary for him to stop, look and listen; but it was necessary, under the circumstances as presented by this case, for him to do one of three things, and if he had looked, he would necessarily have seen the approaching train, and thereby saved himself from the disaster which followed his lack of caution in this particular. It may have been negligence in the railroad company not to have blown the whistle or rung the bell, but their failure to do this did not excuse Jackson from the exercise of ordinary care himself."

In order that the court may see at a glance the effect of the unasked and unwarranted modification by the court we insert herein the instruction asked by the defendant as modified and rejected by the appellant:

"The court instructs the jury for the railroad company that it is the duty of any one approaching a railroad crossing to use due care and caution to avoid injury, that while it is not necessary for the driver approaching a crossing to come to a full stop and look and listen, it is necessary for him to use such care as an ordinarily prudent person would take to insure his safety, and in this case, if they believe from the evidence that Mrs. Stella Hanna, the driver of the rig in question, could have avoided the accident by the exercise of reasonable care and caution, then they must find for the railroad company, even though the employes in charge of the train were also guilty of negligence."

The instruction as asked presented a concrete statement of facts which if believed by the jury from the evidence, entitled the railroad company to a verdict in its favor.

The instruction as modified presented simply a proposition of law without embodying the defendant's hypothesis as deduced from the testimony, and a proposition of law, which is practically the same form, was already before the jury.

Having asked an instruction unobjectionable from a legal view point correctly phrased, we humbly submit, presenting a sound proposition of law, applicable to the state of case made, fairly presenting the theory of the appellant, having had the same modified unwarrantedly, having reserved our execution to the action of the court in the way pointed out by the supreme court, and now presenting the same for the ruling of the supreme court, we ask that we be given the benefit of it,...