Tendall v. Davis

• Decision Date: 22 May 1922
• Docket Number: 22617
• Citation: 91 So. 701,129 Miss. 30
• Court: Mississippi Supreme Court
• Parties: TENDALL v. DAVIS, Agent

91 So. 701

129 Miss. 30

TENDALL v. DAVIS, Agent

No. 22617

Supreme Court of Mississippi

May 22, 1922

1 NEGLIGENCE. Contributory negligence diminishes damages.

Under section 502, Hemingway's Code (Laws 1910, chapter 135 section 1), the jury must diminish damages in proportion to the contributory negligence of the person injured, and, when it manifestly appears that the jury has failed to do so, the court will not permit the verdict to stand.

2. APPEAL AND ERROR. Failure to move for new trial defeats review as to inadequacy.

Failure to move for a new trial in the lower court defeats a review here as to inadequacy of damages awarded.

HON. W A. ROANE, Judge.

APPEAL from circuit court of Marshall county, HON. W. A. ROANE Judge.

Action by Leo Tendall against Jas. C. Davis, Agent, etc. Judgment for plaintiff, who appeals on the ground that the amount of recovery in inadequate. Affirmed on direct and cross-appeals.

Judgment affirmed.

R. H. Knox, for appellant.

The court told the jury in instruction 7, for appellee that "the only ground of negligence relied upon by the plaintiff is the alleged fact that the train was moving at a greater rate of speed than six miles per hour, etc. While at the same time he gave instruction No. 3 for the appellant, that if the jury believes from the evidence in the case that there were box cars stationed on a side-track near where the defendant set his grip down, or near where he was, that obstructed the plaintiff's view from the approaching train that did the injury and that he exercised ordinary care to avoid injury to himself and that in all probability he would not have been injured if it had been possible for him to have seen or heard the approaching train, then the plaintiff was not guilty of contributory negligence and in assessing damages for the plaintiff should you find for him, you should deduct nothing therefrom for the contributory negligence of the plaintiff if you further find that said train was running at an unlawful rate of speed." If this was not enough to confuse the jury and make them do unnatural things we respectfully submit that instruction 8 will cinch the proposition.

In this instruction the court peremptorily instructed the jury that: "The facts show the plaintiff to have been guilty or gross contributory negligence, and that even though you may believe the employees guilty of negligence, the contributory negligence of the plaintiff must be considered to mitigate the damage. This instruction, as well as instruction No. 7, was, as we see it, a fatal error finder the facts in this case, taken in connection with the other instructions in the case. But we shall not dwell further upon these matters since the jury has found for the plaintiff and assessed the damages at one hundred and seventy-eight dollars only, which amount the jury evidently figured was his actual expenses, loss of time, etc., which would leave nothing for the injury complained of.

Authorities. The verdict of the jury in this case was a finding that the appellant's injury was caused by reason of the negligence of appellee and under these circumstances this court said in the case of Henry Scott v. Yazoo & Mississippi Valley R. R. Co., 103 Miss. 522 to 524, that: "The jury having found that plaintiff's injury was caused by reason of the negligence of appellee, it thereby became its duty to render such a verdict as would fairly compensate him, not only for his actual money loss but also for his suffering and disability. The verdict rendered which was for the sum of one hundred dollars is so grossly inadequate as to indicate that, arriving at its verdict, the jury was influenced by passion, prejudice or corruption."

This court in 115 Miss. 199, in the case of Walker Brothers v. Nicks, held that a judgment for two hundred dollars was inadequate and reversed the case and remanded the cause for a new trial as to the amount of damages only. In the case of Suitberry v. Meridian Fertilizer Factory, reported in 106 Miss. 754, Judge COOK characterizes the award of two hundred dollars as being less than "the market price of a good mule."

We submit that this case should by this court be reversed and remanded for another trial upon the question of damages alone.

May, Saunders & McLaurin, for appellee.

Appellant's brief concludes in this language: "We submit that this case should by this court be reversed and remanded for another trial, upon the question of damages alone."

Since there was no motion for a new trial in the court below, and no objection was there made to the verdict or judgment on the ground that the amount thereby allowed was inadequate the objection cannot be urged for the first time on appeal. Coccora v. Vicksburg Light & Traction Co., Miss. , 89 So. 257.

We respectfully urge that the judgment should be reversed and the cause dismissed on appellee's cross-appeal because it appears by plaintiff's testimony, as well as the testimony of defendant, that the sole negligence of appellant in stooping too near the track as the train approached approximately caused such injury as he received.

The testimony being in conflict on the speed issue, we will concede that the train was proceeding slightly in excess of the lawful rate of speed when appellant was struck. This court has expressly held, however, that the excessive rate of speed must be the proximate cause of the injury to entitle the injured person to recover. Clisby v. Railroad Co., 78 Miss. 937; Billingsley v. Railroad Company, 100 Miss. 612, 56 So. 790.

Our case may rest upon either of the two propositions, namely first, the sole negligence of the injured person, the appellant, in suddenly thrusting himself into the path of the approaching train; or second, that the excessive speed was not the proximate cause of the injury. That such conduct of appellant was negligent, is squarely settled by the declarations of Mr. Justice ANDERSON, on behalf of this honorable court, in the case of I. C. R. R. Co. v. Laitker, 98 Miss. 451; I. C. R. R. Co. v. Calhoun, 68 So. 443; Railroad Co. v. Smith, supra; Beasley v. Railroad Co., 91 Miss. 268, 45 So. 864; Railroad Co. v. Frazier, 104 Miss....