New Orleans & G. N. R. Co. v. Walden

• Decision Date: 23 March 1931
• Docket Number: 28713
• Citation: 160 Miss. 102,133 So. 241
• Parties: NEW ORLEANS & G. N. R. CO. v. WALDEN
• Court: Mississippi Supreme Court

133 So. 241

160 Miss. 102

NEW ORLEANS & G. N. R. CO. v. WALDEN

No. 28713

Supreme Court of Mississippi

March 23, 1931

(En Banc.)

1 RAILROADS. Term "prima-facie evidence" in statute making proof of injuries prima-facie evidence of railroad's negligence defined (Code 1930, section 1580).

Code 1930, section 1580, provides that proof of injury inflicted by running of engines, locomotives, or cars shall be prima-facie evidence of want of reasonable skill and care of railroad corporation. The term "prima-facie evidence" is applied to stage of case where proponent having burden of proving issue, has not only removed by sufficient evidence duty of producing evidence to get past judge to jury, but has gone further, and, by means of presumption, has entitled himself to ruling that opponent should fail if he does nothing more in way of producing evidence, and, if opponent offers evidence to contrary sufficient prima-facie evidence to rebut presumption presumption disappears as rule of law, and case is in jury's hands, free from any rule.

2. TRIAL.

Jury deciding fact question on conflicting evidence should reconcile conflicts, if possible, and, if it cannot, it must decide facts in accordance with preponderance of evidence.

3. TRIAL.

Where jury cannot reconcile conflicts in evidence, it must decide facts for party having burden of proof when, but not unless, evidence preponderates in his favor.

4. TRIAL.

Jury is judge of credibility of witnesses and weight of evidence.

5. TRIAL.

Until jury decides facts in dispute, no verdict can be returned by it.

6. RAILROADS.

In action for injury by railroad engine, where circumstances of injury are shown by plaintiff's evidence or by defendant's evidence only, and jury is without right to reject such evidence, no instruction should be given on statutory presumption (Code 1930, section 1580).

7. RAILROADS. Instruction authorizing inference of railroad's negligence in crossing collision, if jury could not determine how injury was inflicted, held erroneous (Code 1930, section 1580).

The instruction was in substance that, while proof of injury by operation of defendant's train was prima-facie evidence that it was result of negligence of defendant, yet, when jury had heard all of facts and circumstances, if they could determine from facts and circumstances whose negligence was cause of injury, then presumption of carelessness must yield to facts, and jury must decide case on facts and not on presumption, but, if there was conflict of facts and theories between testimony of plaintiff and testimony of defendant preventing jury from determining how injury was inflicted, then jury must apply inference of negligence against plaintiff.

McGowen and COOK, JJ., dissenting.

HON. E. J. SIMMONS, Judge.

APPEAL from circuit court of Copiah county, HON. E. J. SIMMONS, Judge.

Action by G. W. Walden against the New Orleans & G. N. Railroad Company. From a judgment for plaintiff, the defendant appeals. Reversed and remanded.

Reversed and remanded.

Flowers, Brown & Hester and Green, Green & Potter, all of Jackson, for appellant.

Section 1717 of Hemingway's Code of 1927 (Prima Facie Statute) is a rule of evidence only, and as a rule of evidence is not violative of the due process of law clause of the Federal Constitution. But if such prima facie statute is given the effect of a rule of liability, then it violates the due process of law clause of the Federal Constitution.

M. J. & K. C. R. Co. v. Hicks, 91 Miss. 273; M. J. & K. C. R. Co. v. Turnipseed, Administrator, 219 U.S. 35, 55 L.Ed. 78; Gulf M. & N. R. Co. v. Brown, 138 Miss. 39, 66, 102 So. 855; Columbus & G. R. Co. v. Fondren, 145 Miss. 679, 110 So. 365; Western & A. R. Co. v. Henderson, 279 U.S. 639, 73 L.Ed. 844, 888; Manly v. Georgia, 279 U.S. 1, 73 L.Ed. 575; Grantham v. G. & S. I. R. R. Co., 103 So. 131, 138 Miss. 360; Davis, Director General v. Temple, 91 So. 689, 129 Miss. 6.

The instruction as given has been condemned in substance in Davis, Director General v. Elzey, 126 Miss. 789, 88 So. 630; Hines v. McCullers, 121 Miss. 677, 83 So. 734; Railroad v. Daniel, 108 Miss. 369, 66 So. 730; Railroad v. Gary, 118 Miss. 612, 79 So. 812.

Wicton v. L. & N. R. R. Co. (decided by Judge HOLMES in the District Court of the United States for the Southern Division of the Southern District of Mississippi).

M. S. McNeil, of Hazlehurst, for appellee.

Plaintiff's instruction complained of, correctly announced the law in reference to the prima facie statute.

R. R. Co. v. Lee, 149 Miss. 543; R. R. Co. v. Fondren, 154 Miss. 40.

The Mississippi prima facie statute deals with the question of evidence and liability and does not violate the Fourteenth Amendment nor come within condemnation announced in W. & A. R. R. Co. v. Henderson, 279 U.S. 639, 73 L.Ed. 884.

In reference to the effect of a presumption it has been held that the presumption is to be indulged or given weight as evidence in plaintiff's favor only where there is an entire absence of credible evidence as to the conduct of the person injured at the time of the accident, and that it does not arise or cease to operate where there is direct testimony one way or the other as to whether the injured party was negligent. The jury may not weigh the presumption as against the evidence; but if the jury decide that the evidence tending to show contributory negligence in the particular claimed is insufficient and should be disregarded, the presumption may then be considered as remaining in force, so far as may be necessary to establish the fact that due care was exercised in all respects not touched on by the evidence.

45 C. J. 1161; Gillett v. Michigan United Traction Co., 205 Mich. 410, 171 N.W. 536; R. R. Co. v. Harrison, 105 Miss. 22.

The Mississippi statute creates merely a temporary inference of fact, that vanished upon the introduction of opposing evidence.

Gulf M. & N. R. R. Co. v. Brown, 138 Miss. 39, 102 So. 855; Columbus & G. Ry. Co. v. Fondren, 145 Miss. 679, 110 So. 365; W. & A. R. R. Co. v. Henderson, 279 U.S. 639, 73 L.Ed. 884.

When a prima facie case is made out by presumption or otherwise, in order to destroy its effect and shift the burden of producing further evidence, the party denying it must produce evidence tending to negative the claim asserted to a point where if no more testimony is given, his adversary cannot win by a preponderance of the evidence.

Klunk v. Hocking Valley R. R. Co., 77 N.E. 752; Gibbs v. Bank, 123 Iowa 742, 99 N.W. 705; Powers v. Russell, 13 Pick. (Mass.) 76.

If a legislative provision, not unreasonable in itself, prescribing a rule of evidence in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him.

R. R. Co. v. Turnipseed, 219 U.S. 38.

Argued orally by Marcellus Green, for appellant.

Smith, C. J., McGowen, J., dissenting. Cook, J., joins in this dissent.

OPINION

Smith, C. J.

The appellant's railroad crosses a street in George-town, Miss., and, on the occasion in question, the appellee was driving an automobile along this street, and, while attempting to cross the railroad track, was struck by one of the appellant's cars, equipped for regular passenger traffic, and moving under its own power, to-wit, a gasoline motor, for which injury the appellee was awarded damages in the court below.

Both the appellee and the appellant introduced evidence setting forth what each claimed where the facts and circumstances of the infliction of the appellee's injury, in which evidence there were several material conflicts.

The statute now appearing as section 1580, Code of 1930, provides that:

"In all actions against railroad corporations and all other corporations, companies, partnerships and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, for damages done to persons or property, proof of injury inflicted by the running of engines, locomotives or cars of any such railroad corporations or such other corporation, company partnership or individual shall be prima facie evidence of the want of reasonable skill and care of such railroad corporation, or such other corporation, company, partnership or individual in reference to such injury."

The court below charged the jury for the appellee as follows:

"The court further charges the jury for the plaintiff that while proof of the injury by the running and operation of the train of defendant is prima facie evidence that the same was the result of negligence of the defendant, yet when you have heard all of the facts and circumstances, if you can determine from such facts and circumstances whose negligence and carelessness was the cause of the injury, then this presumption. However, if there is such a conflict of facts and theories between the testimony of the plaintiff and the testimony of the defendant as to prevent you from being able to determine how the injury was inflicted, then you must apply the inference of negligence against the railroad company and render a verdict for the plaintiff."

The court below refused the appellant an instruction on the effect of the prima facie presumption created by the statute materially different from the one granted the appellee.

The appellee's instruction is challenged on two grounds: (1) It is not warranted by the statute; and (2) if warranted thereby, then the statute violates the due process of law clauses of the state and Federal Constitutions (Const. Miss art. 3,...