Southern Ry. Co. v. Lanning

• Decision Date: 21 December 1903
• Citation: 35 So. 417,83 Miss. 161
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. JOHN R. LANNING

35 So. 417

83 Miss. 161

SOUTHERN RAILWAY COMPANY v. JOHN R. LANNING

Supreme Court of Mississippi

December 21, 1903

FROM the circuit court of Alcorn county. HON. EUGENE O. SYKES Judge.

Lanning appellee, was plaintiff, and the railway company, appellant was defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The evidence for plaintiff was to the effect that defendant's train was scheduled to stop at Glen, a flag station on its road, when signaled by those desiring to take passage thereon; that plaintiff, who was a physician, lived at Corinth, and was at Glen station January 21, 1902, and desired to board the passenger train for his home; that one Fields took a piece of wrapping paper two or three feet long and signaled, but the train did not stop; that Fields began signaling just after the whistle for the station was sounded and continued to flag until the train was almost upon him when the engineer again sounded the whistle, but did not stop the train; that it was light enough for one to see a man for a quarter of a mile down the track; that the county roads between Glen station and Corinth were in bad condition and the waters in the streams high, which prevented plaintiff from traveling the dirt road to Corinth, and he was compelled to walk the railroad track to Corinth, about eight miles, part of the way in the rain. The engineer of the train testified, for defendant, that it was his duty to sound the call and be on the watchout for signals in approaching the flag station; that he sounded the call for signals about a half mile from the station, but gave no other signal; that he was on the lookout for signals, and none were given; that no one was standing on the track, but when he reached the station he saw a man on the south side of the track. The evidence for defendant was to the effect that it was dark when the train reached Glen's station.

The first and third instructions given for plaintiff are as follows:

"(1) The court instructs the jury for the plaintiff, Lanning, that if they believe from the evidence in this case that defendant's passenger train, No. 35, was scheduled to stop at the station of Glen's when signaled to stop by those desiring to take passage thereon, and that Lanning, so intending, signaled said train, or that said train was signaled by Fields; and if they further believe from the evidence that the servants of said company in charge of said train could have, or by the exercise of ordinary care and diligence they should have seen Lanning's signals, the defendant is guilty of negligence and carelessness in not seeing said signals and stopping said train for him to take passage thereon, they should find for Lanning, and assess his damages in such sum as he by the evidence may show himself entitled."

"(3) The jury are the sole judges of the damages, and, should they find for the plaintiff, in assessing compensatory damages they may take into consideration the physical pain, fatigue, and inconvenience to plaintiff because of the wrong done him; and should they believe that the acts of defendant's servants were characterized by willfulness or capriciousness, they may go beyond compensatory damages and assess punitive damages."

Reversed and remanded.

W. L. Lamb, for appellant.

The witnesses for the appellee do not say the engineer saw them flag the train, or that he could have seen them by reasonable diligence on his part, they only say they could see the train and could see a man upon the track after the train had passed. The engineer states positively he did not see the flag, nor did he see any one trying to flag the train, and if he had done so he would have stopped the train. The testimony of the engineer is not contradicted by any witnesses.

The exact question raised here was passed on by this court in the case of Chicago, etc., R. Co. v. Packwood, 59 Miss. 282, and the court says, as follows: "It is not a question of credability of witnesses nor of conflict of testimony, but one in which the plaintiff having made out his case is met by proof on the other side, not in denial of his, but which, admitting the absolute truth of everything proved by him, goes further and nullifies its effect by proof of other facts which demonstrate that he has no right to recover. The plaintiff closed when he made out his case. The defendant responds, not by denying or conflicting evidence, but by proving something additional which negatives his right to recover." Railroad Co. v. Smith, 67 Miss. 15.

The proof shows that the train passed the station at 5:40 P.M., and the day was a cloudy, rainy day.

It is a matter of common knowledge that in January, and especially at that time of day, it is dark, and especially so a cloudy, rainy day. This is proof that seems to us ought to have considerable weight in passing on the testimony in the case. It shows conclusively that the testimony of the appellant on that point is correct, namely, that the day was dark and the kind of flag used by appellee could not be seen, if any flag at all was used. There is no evidence that the engineer did see the flag or could have seen it by reasonable care. The proof for appellee is mere conjectural, while the proof for appellant is clear, positive, and conclusive.

The first instruction for plaintiff is open to very severe criticism.

The law requires such a signal to be given, as could be seen by reasonable...