St. Louis-San Francisco Ry. Co. v. Dyson

• Decision Date: 28 November 1949
• Docket Number: No. 37199,LOUIS--SAN,37199
• Citation: 43 So.2d 95,207 Miss. 639
• Parties: ST.FRANCISCO RY. CO. v. DYSON.
• Court: Mississippi Supreme Court

Page 95

43 So.2d 95

207 Miss. 639

ST. LOUIS--SAN FRANCISCO RY. CO. v. DYSON.

No. 37199.

Supreme Court of Mississippi, in Banc.

Nov. 28, 1949.

C. R. Bolton, Tupelo, D. W. Houston, Sr. & Jr., Aberdeen, for appellant.

W. W. Ramsey, Vicksburg, Noel Monaghan, Tupelo, for appellee.

HALL, Justice.

Appellee brought suit against appellant, an interstate carrier, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the recovery of damages for injuries alleged to have been sustained by him while in its employment as a brakeman on one of its interstate trains. The declaration is in two counts, the first being for an accident alleged to have occurred on April 30, 1944, and the second being for an accident alleged to have occurred about two months later. Upon conclusion of all the evidence the trial court granted a peremptory instruction for appellant upon the second count, and submitted to the jury the issue of negligence raised by the first count. The jury returned a verdict in favor of appellee for $7500.00 from which the railway company appeals. No cross-appeal has been prosecuted respecting the disposition made of the second count.

Appellant's first contention is that it was entitled to a peremptory instruction on the first count. It was charged and established by appellee's proof that a switch to an interchange track at Demopolis, Alabama, was maintained in such condition that it could not be thrown without undue and great exertion, that for this reason it was not reasonably safe, and that while engaged in turning the switch in the discharge of his duties appellee was subjected to such a severe strain as to cause the rupture of a stomach ulcer, which up to that time he did not know existed. This necessitated a serious surgical operation from which appellee contends, and his proof tends to establish, he has never fully recovered. According to appellee's evidence the slots on the switch stand into which the lever fitted were worn back about one-half inch, the bridle rods connecting the bottom of the switch to the rails to be moved when turning it were held in place with brace plates that were tight on both ends, and the pointed rail did not fit against the other rail as it should, and as a result of these conditions the switch was unusually hard to turn, so much so that on a previous occasion about a week before the injury appellee was unable to turn the switch lever with his hands and arms and was compelled to throw the weight of his body against it from his hip in order to permit the movement of cars onto the interchange track, which alleged condition he testified was then reported to the section foreman who was charged with the duty of maintaining the switch and track. Moreover, there was other evidence that the condition had existed a sufficient length of time that appellant should have known thereof by the exercise of reasonable care. In our opinion this evidence is sufficient to establish negligence in the maintenance of the switch and the case was therefore properly submitted to the jury.

However, it is further argued in this connection that it was only the duty of appellant to exercise reasonable care to keep and maintain the switch in a reasonably safe condition for use by a normal man, and that the proof is insufficient to show the probability of injury to a normal man in turning the switch. We are of the opinion that the proof was sufficient to make a jury issue of the question. The appellant obtained an instruction which told the jury that it was not liable if the switch was in a reasonably safe condition for use by trainmen generally who were charged with the duty of throwing the same and if the plaintiff's injuries were due to his weakened condition because of the stomach ulcer. It was fitting and proper that the jury should be so charged, as this was a matter solely for determination by the jury.

It is next contended that one of appellee's instructions is erroneous because it authorized a recovery of such damages as the jury 'may believe from the evidence' he has sustained. The specific complaint is that the instruction should have said 'may believe from a preponderance of the evidence.' The rule on the burden of proof is that a party must establish the requisite facts by a preponderance of the evidence. 'Preponderance' means superiority in weight, 49 C.J. 1331. The jury cannot believe anything from the evidence unless it is proven by the greater weight of the evidence. When facts are established by a preponderance of the evidence, then the jury may believe those facts from the evidence, and it is wholly unnecessary for an instruction to contain the word 'preponderance' in such instances as are illustrated by the foregoing. See Gregory v. Williams, 203 Miss. 455, 467-468, 35 So.2d 448, 451, and the authorities therein cited. There is nothing misleading in this instruction and the jury in this case could not possibly have misunderstood that the evidence should preponderate in favor of appellee, for not only did appellee obtain four other instructions which used the would 'preponderance' but he also obtained an instruction defining it, and appellant itself obtained an instruction that the burden of proof is upon the plaintiff to make out his case against the defendant by a preponderance of the evidence and if the jury was not satisfied from the evidence that the plaintiff has done this, then it is the sworn duty of the jury under their oaths to return a verdict for the defendant, and further that if the jury believe that the evidence in the case is evenly balanced it is their sworn duty to find for the defendant. We, therefore, find no merit in this contention.

Complaint is next made against some of the instructions for appellee in authorizing a recovery 'not to exceed the amount of $55,450.00, the amount sued for'. Appellant relies upon some of the Mississippi authorities which have condemned the practice of using such expressions in plaintiff's instructions and wherein excessive verdicts have been set aside because of such use. We think it proper that we here sound a note of warning to the bar of the state that verdicts obtained by this practice may be vitiated. The last case in which this question was raised in this court is General Geophysical Co. v. Brown, 205 Miss. 189, 38 So.2d 703, 706, where we affirmed a verdict for plaintiff notwithstanding the use of a similar phrase, because we there found that the damages awarded were not excessive and the instruction, as in the case at bar, authorized a verdict only 'in an amount reasonable to compensate him'. Again we repeat that in the practice in this state the use of such expressions endangers a verdict and may result in its reversal. The case at bar, however, is brought under the Federal Employers' Li...