S. H. Kress & Co. v. Sharp

• Citation: 159 Miss. 283,131 So. 412
• Decision Date: 15 December 1930
• Docket Number: 29021
• Parties: S. H. KRESS & Co. v. SHARP
• Court: United States State Supreme Court of Mississippi

131 So. 412

159 Miss. 283

S. H. KRESS & Co. v. SHARP

No. 29021

Supreme Court of Mississippi

December 15, 1930

Division B

1. APPEAL AND ERROR.

Verdict of jury so large as to be shocking to enlightened conscience should be set aside.

2. APPEAL AND ERROR.

In determining whether verdict is result of passion or prejudice and should therefore be set aside, supreme court may consider amount of verdict at former trial for considerably less.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Suit by Miss Bettie Sharp against S. H. Kress & Co. Judgment for plaintiff, and defendant appeals. Affirmed on condition of a remittitur.

Affirmed with remittitur.

Amis, Dunn & Snow, of Meridian, for appellant.

Under the plea of contributory negligence it became pertinent on the second trial to go into the question of the negligence of the defendant in the premises in order to determine the degree of negligence, if any, on the part of plaintiff, and the degree of negligence on the part of the defendant, and the amount imputable to each.

A clear case of contributory negligence is conclusively shown by the undisputed testimony. The refusal of the trial court to grant the peremptory instruction requested by the appellant to the effect that the appellee was guilty of contributory negligence was erroneous, and the error of the court was highly prejudicial to the rights of the appellant.

This court held on the former appeal that a judgment for twenty-five thousand dollars was excessive and reversed the cause for that reason. The testimony on the second trial did not show any reason for any increase in the award of damages over the amount which would have been justified on the first trial.

Reily & Parker, of Meridian, for appellee.

The defense of contributory negligence is always an affirmative defense, and the burden of proof as to it is upon the defendant. This is the rule in Mississippi and the rule enforced in the federal courts. By the express provisions of our statute all negligence is now a question for the jury.

Y. & M. V. R. R. Co. v. Lucken, 102 So. 393; M. & O. R. R. Co. v. Campbell, 75 So. 554.

The rule in giving a peremptory instruction is that conceding all the facts to be true which the testimony tends to establish, and drawing all inferences favorable to the other party which may be drawn logically from the testimony, there is no defense made, or nothing to be submitted to the jury.

G. & S. I. R. R. Co. v. Prine, 79 So. 62; American Trading Co. v. Ingram-Day Lumber Co., 69 So. 707.

Contributory negligence is a defense to be affirmatively proved. It will be presumed the injured party was in the exercise of due care until the contrary is made to appear.

L. R. & F. S. Ry. Co. v. Eubanks, 3 A. S. R. 245.

Where the facts are conceded, but the inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury, and not the judge, which is to be appealed to.

Southern Railway Co. v. Floyd, 55 So. 287.

It is always difficult for a court to determine whether the verdict of a jury was influenced by passion or prejudice.

I. C. R. R. Co. v. Williams, 110 So. 510.

It was the province of the jury, and the jury alone, to measure in dollars and cents the amount due for physical and mental anguish and suffering, and, unless in a case where the verdict plainly shows that the jury must have been influenced by passion, prejudice, or corruption, this court never interferes with their finding as to damages. This court has no scales delicate enough to weigh physical and mental anguish. At best it is an extremely difficult task.

Y. & M. V. R. R. Co. v. Wallace, 45 So. 857; Hardy v. M. C. R. R. Co., 41 So. 505.

Argued orally by Ed. Snow, for appellant, and by Marion W. Reily, for appellee.

OPINION

Anderson, J.

There have been two trials of this case. On the first trial there was a verdict and judgment for appellee in the sum of twenty-five thousand dollars. From that judgment appellant prosecuted an appeal to this court. On the third of March of the present year, the judgment was reversed, and the cause remanded to be tried on the issue of damages alone. S. H. Kress & Co. v. Sharp, 156 Miss. 693, 126 So 650. The ground of reversal was that, in view of the indefiniteness and uncertainty of the evidence then before the court as to the nature and extent of appellee's injuries, the verdict was excessive. On the second trial there was a verdict and judgment in the sum of forty thousand dollars, and...