Southern Railroad Co. v. Ganong

• Decision Date: 22 May 1911
• Docket Number: 14663
• Citation: 55 So. 355,99 Miss. 540
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILROAD COMPANY v. MRS. EMMA GANONG

55 So. 355

99 Miss. 540

SOUTHERN RAILROAD COMPANY v. MRS. EMMA GANONG

No. 14663

Supreme Court of Mississippi

May 22, 1911

APPEAL from the circuit court of Alcorn county, HON. JNO. H MITCHELL, Judge.

Suit by Mrs. Emma Ganong against the Southern Railway Company. From a judgment for plaintiff defendant appeals.

The facts are stated in the opinion of the court.

Affirmed.

W. J Lamb, for appellant.

Charge No. 2, given for the appellee, says that if the appellee was injured as a direct result of "such failure and plaintiff was injured in whole or in part substantially as set out and alleged by her in her said declaration, then the jury will find for the plaintiff."

We are at a loss to know what this charge means when it says "was injured in whole or in part." If the appellant did not cause all of the injury but only part of it, for what part ought the appellant to have to pay damages. The charge which is given gives the jury no criterion by which to assess damages for the appellant although they may believe that the appellant did not cause all of the injury to the plaintiff. This charge again says that if the plaintiff proves substantially what she set out in her declaration, then the jury will find for the plaintiff. We respectfully submit to the court that the plaintiff did not prove substantially, or in any other way, what is set out in her declaration for she contends in her declaration that her kneecap was broken and crushed, and broken loose from its normal position, when as a matter of fact the proof shows that there was no injury perceptible except a little dark spot on the knee. It is an elementary principle of law that a person cannot claim damages for one injury and recover for another, and that is exactly what is undertaken to be done in this case, and what is done up to the present time, and we respectfully submit to the court that because of this being such a close case on the facts that these two charges misled the jury, and this verdict should not stand.

The fifth charge is subject to the same criticism as the second for it says that if she received the injury, or any part thereof, as set out in her declaration, without any proof to sustain the allegations in her declaration, and no attempt is made on the part of the appellee to amend her declaration so as to conform to the proof.

The sixth charge is subject to the same criticism.

When the charges given for the appellee in this case are analyzed and applied to the facts in this case, we respectfully submit that they are error and that the jury was misled, for the appellee has gotten judgment for one injury when she sued for another. This being our contention in the case, we respectfully submit that the court erred in overruling the motion of the appellant for a new trial because the verdict was contrary to the law and the evidence in the case, and this court should correct this error by reversing this case.

Young &amp Young, for appellee.

We humbly submit that by a careful inspection of the record in this case, which is short, it will readily be seen by this court that none of appellant's assignments of error have any merit in them, that no injustice has been done appellant, either by the court in its instructions to the jury, as to the law arising on the facts and governing in the case, or by the jury in its finding on the facts, and that the insinuations of appellant's counsel, in his brief, to the effect that appellee, in instituting and maintaining her suit, was not and is not acting in the utmost good faith, is utterly without the shadow of warrant.

Appellee by her testimony shows, that the injury complained of and which caused her such great pain and suffering, lasting...