Ross v. Louisville & N. R. Co

• Decision Date: 16 May 1938
• Docket Number: 33204
• Citation: 181 Miss. 795,181 So. 133
• Parties: ROSS v. LOUISVILLE & N. R. CO
• Court: Mississippi Supreme Court

181 So. 133

181 Miss. 795

ROSS v. LOUISVILLE & N. R. CO

No. 33204

Supreme Court of Mississippi

May 16, 1938

Division B

1. MASTER AND SERVANT.

In flagman's action against railroad for injuries allegedly sustained when express truck struck flagman while he was riding on express car, evidence as to whether any such accident occurred supported verdict for railroad.

2. APPEAL AND ERROR.

Plaintiff could not complain of instructions given on defendant's request on ground that they permitted departure from the law of the case, where plaintiff obtained instructions which not only permitted departure from the law of the case, but departure from any and all law.

3. APPEAL AND ERROR.

A judgment will not be reversed for error in appellee's instruction when those given for appellant are subject to criticism on the same ground.

HON. W A. WHITE, Judge.

APPEAL from the circuit court of Harrison county, HON. W. A. WHITE Judge.

Action by R. B. Ross against the Louisville & Nashville Railroad Company for injuries allegedly sustained by plaintiff while riding as a flagman on an express car, where plaintiff was struck by an express truck. From a judgment for defendant plaintiff appeals. Affirmed.

Affirmed.

Mize, Thompson & Mize, and Carl Marshall, all of Gulfport, for appellant.

Instruction A granted for the appellee is especially offensive against the law; as it tells the jury to find for the appellee as the sole proximate cause of the appellant's injury was the backing of the express truck, the instruction deliberately omitting reference to any question of negligence of either the appellee or the express company. We are at a loss to conceive of the way in which an instruction could be more glaringly defective and misleading on a vitally important phase of the cause, precluded from discussion on the former appeal.

D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415.

The appellant assigns as error the action of the trial court in granting Instruction No. 9 at the request of the appellee.

The granting of an instruction that singles out for comment, gives conspicuity to, and the judicial slant upon any special evidence in the case, and is argumentative, constitutes reversible error.

Odeneal v. Henry, 70 Miss. 172, 12 So. 154; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Gurley v. Tucker, 170 Miss. 565, 155 So. 189; Mohead v. Gilmer Grocery Co., 153 Miss. 46.7, 121 So. 143; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415.

The appellant respectfully assigns as error committed to his prejudice in the trial below, the trial court's grantlng instruction No. 10 at the instance of the appellee.

There was no issue of fact in the case to whether the Federal Employers' Liability Act applied, or some statute of the state, or some rule of the common law; and this instruction, in singling out and directing the jury's attention to the Federal Employers' Liability Act, had no applicability to any issue presented in the case with which the jury was at all concerned. It was grossly misleading and unfair.

Stokes v. Adams-Newel Lbr. Co., 151 Miss. 711, 118 So. 441; Fairfield v. L. & N. R. R. Co., 94 Miss. 887, 48 So. 513.

The appellant most earnestly submits that the Instruction No. 15 granted at the instance of the appellee in the trial below was wholly erroneous, and most gravely prejudicial to the appellant's cause. As the court will observe, this instruction sought to inject the issue of contributory negligence into the cause; and furnished the jury with a statement of the law of contributory negligence that in any case was erroneous in the most important particular.

The appellant submits to the court that error to his prejudice was committed by the learned trial court in declining to permit the appellant to testify that he immediately reported the occurrence of the accident and injury to the conductor in charge of the train in question, and was asked by the conductor if he wished to go to the hospital, and replied that he did not, but that if he did not feel better in the morning he would not go out on the three o'clock train.

Over and against the earnest objection, protest, and entreaty of appellant's counsel, the trial court declined to permit them to cross-question this conductor in the presence of the jury at all as to whether during any day in August, 1933, the appellant reported the accident and injury to him; appellant 's counsel dictating into the record a statement to the effect that only one accident and injury had occurred to the appellant and been reported, to the witness, and the appellant was prepared to prove that the accident and injury that the witness said were reported to him on August fourth were in fact reported on August 24, when they occurred. But the court for some reason declined to permit the conductor to be questioned as to a report on any date except August 24, 1933, when the appellant said that the accident occurred.

We submit that this was a clearly erroneous deprivation of the appellant's right of cross-examination; and a more serious and prejudicial error could scarcely be imagined in the circumstances.

Miss. Ice & Utilities Co. v. Pearce, 134 So. 164.

And in the same attitude was the learned trial court's arbitrary (we use the term with respect and deference) refusal to permit appellant's counsel to cross- examine Dr. Werlein, introduced by the appellee as a professional witness, expert on cataract.

Griffith v. Los Angeles Pac. Co., 111 P. 107; Tompkins v. West, 16 A. 237; Connecticut Mut. Life Ins. Co. v. Ellis, 89 Ill. 513.

Smith & Johnston, of Mobile, Ala., for appellee.

It is fundamental that there can be no liability on the part of the defendant unless the defendant was guilty of some negligence that constituted a proximate cause of the injury. The jury cannot speculate as to this, but there must be positive and definite proof. It is just as important that the negligence be a proximate cause of the injury as it is that there be negligence.

Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 33; Atchison, Topeka & S. F. Ry. v. Toops, 281 U.S. 351; New York Central R. Co. v. Ambrose, 280 U.S. 486; Delaware, Lackawanna & Western R. Co. v. Koske, 279 U.S. 7; Toledo, St. Louis & Western R. Co. v. Allen, 276 U.S. 165.

Proof of negligence is not sufficient without positive proof that it constitutes the proximate cause.

New York Central R. R. Co. v. Ambrose, 280 U.S. 486; Bufkin v. Louisville & Nashville R. Co., 137 So. 517; Louisville & Nashville R. Co. v. Daniels, 99 So. 434, 135 Miss. 33.

Under the instructions given at the request of the plaintiff if the injury was the proximate result of any negligence of the defendant the jury was to find for the plaintiff, and under these instructions if the injury was the sole proximate result of the act of someone else, which would necessarily exclude any negligence on the part of the defendant as being a proximate cause, the jury was instructed to find for the defendant. The result of these instructions is that the jury was given a great deal more leeway to find for the plaintiff than the law allows.

Under the federal rule a man is not permitted to testify to an absurdity and obtain a judgment based on such.

Pennsylvania R. R. Co. v. Chamberlain, 288 U.S. 333; Favre v. Louisville & Nashville R. R. Co., 180 Miss. 843.

Where the verdict is for the defendant, an instruction as to the measure of damages, or the extent of damages, is without injury, even if erroneous.

Stamps v. Polk, 108 So. 729, 143 Miss. 551; Crenshaw v. Seaboard Air Line R. Co., 121 So. 736; Roll v. Dockcry, 122 So. 630; Kern v. Friedrich, 126 So. 857; M. & O. R. Co. v. Campbell, 75 So. 554, 114 Miss. 803; Bradford v. Taylor, 37 So. 812, 85 Miss. 409; Moore v. Johnson, 114 So. 734, 148 Miss. 827.

The statement of the law in Instruction No. 9, however, is based upon decisions of the courts that hold that where a matter is strictly a question for expert knowledge, the finding of the jury must be supported by the testimony of an expert, and cannot be based upon speculation, or the opinion of a layman.

U. S. v. Clapp, 63 F.2d 793; U. S. v. Wilfore, 66 F.2d 255; Hartford Acc. & Ind. Co. v. Industrial Ace. Com., 35 P.2d 366.

A jury is never allowed to speculate, and base a verdict thereon.

Pennsylvania R. R. v. Chamberlain, 288 U.S. 333; Northwestern Pacific R. R. v. Bobo, 290 U.S. 499, 78 L.Ed. 462.

Instruction No. 10 merely tells the jury that they can not speculate, but their findings must be based upon the evidence. The appellant does not deny that this is the law, but seems to object to the jury having been told that it was the law. This charge is exactly in accordance with the holding of the Supreme Court of the United States as well as every court in the land.

Pennsylvania R. R. v. Chamberlain, 288 U.S. 333; Atchison, T. & S. F. Ry. v. Toops, 281 U.S. 351; New York Central R. R. v. Ambrose, 280 U.S. 486.

The following Mississippi cases clearly substantiate the proposition that the statements of an employee in regard to an accident made a short time thereafter are not binding upon the employer.

Y & M. V. R. R. Co, v. McGowan, 62 Miss. 682; Simms v. Forbes, 38 So. 546, 86 Miss. 412; G. M. & N. R. R. Co. v. Hudson, 107 So. 369, 142 Miss. 142; Woods v. Franklin, 118 So. 450, 151 Miss. 635; Deposit Guaranty Bank & Trust Co. v. Silver Saver Stores, ...