Mobile & O. R. Co. v. Campbell

• Decision Date: 11 June 1917
• Docket Number: 18694
• Citation: 114 Miss. 803,75 So. 554
• Parties: MOBILE & O. R. CO. v. CAMPBELL
• Court: Mississippi Supreme Court

75 So. 554

114 Miss. 803

MOBILE & O. R. CO. v. CAMPBELL

No. 18694

Supreme Court of Mississippi

June 11, 1917

APPEAL from the circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

Suit by H. D. Campbell against the Mobile & Ohio Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

J. M Boone and W. D. Anderson, for appellant.

We will present to the court together the refusal of the court below to grant the peremptory instructions for the defendant, and the overruling of the motion for new trial.

While it is true that this court has frequently held that where there is testimony tending to make out plaintiff's case it is improper to grant the defendant a peremptory instruction; it is equally true that this court has laid down very clearly the rule to be as follows: "The circuit court would have been compelled, if such verdict bad been rendered, to set it aside on the ground that it was not warranted by the testimony; and this fact is the best test of the propriety of his action in granting at the outset the peremptory instructions." Flora v. Express Co., 92 Miss. 69; Clark v. Moyse, 48 So. 721; McFadden v. Buckley, 53 So. 351; Dodson v State, 67 Miss. 33; Fore v. Railway Co. , 87 Miss. 218.

With reference to the instructions. The verdict of the jury for the plaintiff and the amount thereof is so contrary to what we think a fair and reasonable consideration given to the evidence in the case would justify, that we will argue fully each error to each instruction for the plaintiff, which we think the court made in granting the instruction; and seek to show that the jury was evidently misled into rendering their verdict.

Instruction No. 1. (For plaintiff): "The court instructs the jury for plaintiff, Campbell that it is unlawful for a railroad train to be operated within the corporate limits of a city at a greater rate of speed than six miles an hour, and that it is unlawful for a train or part of train to back into or alongside a passenger depot in an incorporated city at a greater rate of speed than three miles an hour, and that within two hundred feet of said passenger depot a servant must precede the cut of cars not less than twenty feet nor more than forty feet and that it is unlawful for a train or part of train to go upon a crossing of another railroad track with its own without coming to a full stop just before going on the crossing; and that if the jury are satisfied by a preponderance of the evidence that all or any one of these laws were violated in the operation of the Mobile & Ohio train on the day of this accident and that plaintiff received injuries on account of the said negligence of said railroad company, then it is your duty under the law to return a verdict for him for full damages."

The court in this charge made the following errors: 1. By it the jury were instructed with reference to a case that was not before the court or jury on the pleadings; they were told that it was unlawful for a railroad to operate a train within the corporate limits of a city at a greater rate of speed than six miles an hour. The pleadings did not allege a violation of the six miles statute; there was no claim for any rights under the six miles statute in the declaration, and the speed of the train in so far as the six miles statute is concerned, was wholly immaterial. Yet the court authorized the returning of a verdict for the plaintiff upon this statute, independent of all other questions involved in the case. This certainly making one case by the pleadings, and another case by the instructions of the court, which is never permissible. Eaves v. Harris, 95 Miss. 607, 49 So. 258; Y. & M. V. R. R. v. Carrol, 60 So. 1013; Railroad v. Robinson, 106 Miss. 896, 64 So. 838.

Before the comparative negligence statute was passed, recovery under section 4047 was permissible, regardless of mere contributory negligence; and the court below evidently acted on the theory that section 4047 was yet in full force and effect.

In this charge the court stated a concrete case, stating the facts that would justify the plaintiff to recover, and therefore it cannot be said that this instruction was cured by another instruction, either for plaintiff or defendant, properly stating the law. Mahaffey v. Russell, 100 Miss. 122, Godfrey v. Meridian etc., Co., 58 So. 534, 101 Miss. 265.

Instruction No. 2. (For plaintiff). "The court instructs the jury for the plaintiff that the measure of damage, if the jury believe that the plaintiff has been injured by the negligence of the railroad company, is the amount that will compensate him for his injuries; and in computing this amount it is proper for the jury to take into consideration his actual damage, including mental and physical pain, loss of time, expense of doctors' bills, drugs and if the jury believe by a preponderance of the evidence that the plaintiff's injuries, received by the negligence of the defendant are of a permanent nature, then, they may compute his future earning capacity by his expectancy multiplied by his earning capacity, if the jury are satisfied from the evidence that he had any expectancy and earning capacity."

We admit that it is extremely difficult to tell what this instruction means, as to how the jury are to compute the future earnings of the plaintiff. If it means that the jury were authorized to multiply his life expectancy by his present annual earnings, which was shown to be something like two thousand four hundred dollars a year, and we think that this is the only intelligent interpretation of the language of this instruction, then it is erroneous for the reason that plaintiff at most was only entitled to the present cash value of his expectancy. He was not entitled, under the law, in cash, to the full value of his expectancy, as told in this instruction, but was only entitled to its present cash value. Cumberland Tel. Co. v. Anderson, 89 Miss. 732, 8 Ruling Case Law, section 204. The plaintiff was entitled to recover, if at all, only for his diminished earning capacity during his probable life expectancy.

Instruction No. 4 (For plaintiff). "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence that the accident complained of occurred from either of three proximate causes, that is; as a flying switch, or from unlawfully backing a train or part of train within two hundred feet of a passenger depot, or from the unlawful failure to have an employee precede said backing train not more than forty nor less than twenty feet in advance of said backing cars, then you must find for the plaintiff regardless of mere negligence of plaintiff, and the form of your verdict will be: 'We, the jury, find for the plaintiff and assesses his damages at blank dollars' filling in the blank with the amount of your verdict."

This instruction is erroneous, (1) because it instructs the jury that the three causes referred to in the said instruction are proximate causes. Thus finding as a matter of law that they were proximate causes, instead of leaving it to the jury to say whether or not these three causes existed, and were proximate causes. Y. & M. V. R. R. v. Smith, 60 So. 73, Underwood's Evidence, Record 111; Jenning's Evidence, Record 130.

Instruction No. 5 (For plaintiff). "The court instructs the jury for the plaintiff that the employees of one railroad have the right to use the crossing of the two railroads for switching purposes, when they use the same with ordinary care; they have a right to presume that the laws of the land will not be violated by the employees of the other railroads, and that it is not even ordinary negligence much less wanton and reckless conduct to look ahead for signals while on a crossing of another railroad track."

This instruction was evidently based upon the testimony of plaintiff, Campbell, wherein he stated that he did not look back towards the crossing, but that he kept his vision in other directions watching his own crew, because he presumed the Mobile & Ohio people would observe the law; and is an effort to prevent the jury from being influenced by this testimony of Campbell, although Campbell did state that he saw the train coming some six hundred feet away. This instruction was not only misleading but is not the law of the land. While plaintiff may presume that defendant will observe the law, yet this does not absolve him from the duty to exercise care and caution to protect himself. Hackson v. Railroad, 89 Miss. 32; 33 Cyc., Page 738; McNeil v. Bay Springs Bank, 56 So. 333.

Instruction No. 6 (For plaintiff). This instruction is erroneous for the same reasons, on the question of the measure of damages, as urged above against instruction No. 1 for plaintiff on this point.

We respectfully submit that the errors in these charges entitle the defendant to a reversal of this case.

Lester G. Fant, for appellee.

It is not contended in the brief of the appellant that plaintiff did not make out its case. On the contrary, the record discloses that at the close of plaintiff's testimony counsel for the railroad company did not have the hardihood to even ask that the testimony be excluded and a peremptory instruction granted the defendant; and had they done so they would have made themselves ridiculous. In addition to the fact that plaintiff would have been more entitled to have had a peremptory instruction to find for the plaintiff than the defendant would, this court has, as I understand it, approved the doctrine of comparative negligence and held that in all cases where a question of negligence was involved, that the jury must decide the rights of the parties. See Laws 1910, Chap. 135; Railraod Co. v. Crawford, 99 Miss. 697...