Tri-State Transit Co. v. Martin

• Decision Date: 07 March 1938
• Docket Number: 33054
• Citation: 181 Miss. 388,179 So. 349
• Court: Mississippi Supreme Court
• Parties: TRI-STATE TRANSIT Co. v. MARTIN

179 So. 349

181 Miss. 388

TRI-STATE TRANSIT Co. v. MARTIN

No. 33054

Supreme Court of Mississippi

March 7, 1938

Division B

APPEAL from the circuit court of Madison county, HON. JULIAN P ALEXANDER, Judge.

Action by Della Martin against the Tri-State Transit Company for breach of contract of carriage. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Stevens & Stevens, George R. Nobles and Bob Ray, all of Jackson, for appellant.

The court erred in permitting the plaintiff to recover for sickness and illness from heat prostration, and from the effects of heat exhaustion or heat prostration.

17 A.L.R. 1197, Annotation, "Sunstroke as Accident;'' 13 A.L.R. 979, Annotation "Sunstroke as Accident;'' 7 L.R.A. (N.S.) 1178, Annotation, "Proximate Result;" Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719, 42 S.E. 1024; Cincinnati, N. O. & Texas Pacific R. Co. v. Raine, 113 S.W. 495, 19 L.R.A. (N.S.) 753; Columbus & Greenville Ry. v. Coleman, 172 Miss. 514, 160 So. 277; Continental Cas. Co. v. Bruden, 178 Ark. 683, 11 S.W.2d 493, 61 A.L.R. 1192; 10 C. J. 838, sec. 1278; Couch, Cyclopedia of Ins. Law, sec. 1154; Doyle v. City of Saginaw, 258 Mich. 467, 243 N.W. 27; Gallagher v. Fidelity & Casualty Co. of N. Y., 163 A.D. 550, 148 N.Y.S. 1016; Garland v. Carolina, etc., Ry., 90 S.E. 779, L.R.A. 1917B 706; Haley v. St. Louis Transit Co., 179 N.W. 30, 77 S.W. 731, 64 L.R.A. 295; Higgins v. Midland Cas. Co., 281 Ill. 431, 118 N.E. 11; Jabron v. State, 172 Miss. 135, 159 So. 406; Landress v. Phoenix Mutual Life Ins. Co., 78 L.Ed. 537, 54 S.Ct. 461, 90 A.L.R. 1382; LeBeau v. Minneapolis, etc., Ry. Co., 159 N.W. 577, L.R.A. 1917A 1017; Louisville & N. R. Co. v. Blair, 154 Miss. 680, 123 So. 859; Louisville & N. Ry. Co. v. Mask, 64 Miss. 738, 2 So. 360; Louisville & N. Ry. v. McArthur, 137 Miss. 780, 102 So. 842; Louisville & N. Ry. v. Quick, 28 So. 14; Mather v. London Guarantee & Accident Co., Ltd., 125 Minn. 186, 145 N.W. 863; Malcolm v. Louisville & N. Ry. Co., 155 Ala. 337, 46 So. 768; Morse v. Duncan, 14 F. 396; Natchez, Columbia & Mobile R. Co. v. Lambert, 99 Miss. 310, 54 So. 836; Pack v. Prudential Cas. Co., 170 Ky. 47, L.R.A. 1916E 952, 185 S.W. 493; U. S. Fidelity & Cas. Co. v. Hoflinger, 45 S.W. 868; Y. & M. V. Ry. v. Hardie, 100 Miss. 132, 55 So. 42, 106 Miss. 436, 64 So. 1; Y. & M. V. Ry. v. Williams, 114 Miss. 236, 74 So. 835.

Plaintiff's failure and inability to hire a conveyance not proximate result of carrying beyond destination.

Central of Ga. Ry. v. Barnitz, 198 Ala. 156, 73 So. 471; Gage v. I. C. Ry., 75 Miss. 17; L. & N. Ry. v. Clark, 205 Ala. 152, 87 So. 676; N. 0., etc., Ry. v. Statham, 42 Miss. 607; Sevier v. Vicksburg R. Co., 61 Miss. 8.

The court erred in overruling the defendant's motion for a new trial.

Galtney v. Wood, 149 Miss. 56, 115 So. 117; G. & M. V. Ry. v. Jones, 155 Miss. 689, 125 So. 114.

The court erred in denying the defendant's instruction to the effect that if the plaintiff wished to get off at the next point beyond Gitano, and so advised the driver, she could not recover.

Gage v. I. C. Ry., 75 Miss. 17; N. 0., etc., Ry. v. Statham, 42 Miss. 607; Sevier v. Vicksburg, etc., Ry., 61 Miss. 8.

The court erred in granting the plaintiff an instruction authorizing the recovery of medical bills and bodily pain and mental suffering, as shown by the instruction.

Louisville & N. Ry. v. Blair, 154 Miss. 680, 123 So. 859.

The court erred in instructing the jury that the defendant was under the duty to return the plaintiff to her destination.

I. C. Ry. v. Hawkins, 114 Miss. 110, 74 So. 773, L.R.A. 1917D 977; N. O. E. Ry. v. Martin, 140 Miss. 410, 105 So. 864; Y. & M. V. Ry. v. Hardie, 100 Miss. 132, 55 So. 42.

The court erred in instructing the jury that the plaintiff might recover damages for being forced to walk across country in the heat of the day.

Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Williams v. Gulfport, 163 Miss. 334, 141 So. 228.

The court erred in granting the plantiff's instruction regarding her prior arrangements to be met at Summerland.

Central of Georgia Ry. v. Barnitz, 73 So. 471; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Louisville & N. Ry. v. Quick, 28 So. 14; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Y. & M. V. Ry. v. Aultman, 173 So. 280.

The verdict of the jury is excessive.

Burns v. A. & V. Ry., 93 Miss. 816, 47 So. 640; Case v. Y. & M. V. Ry.,114 Miss. 21, 74 So. 773; G. M. & N. Ry. v. Jones, 155 Miss. 689, 125 So. 114; M. & O. Ry. v. Currie, 113 Miss. 45, 73 So. 868; Y. & M. V. Ry. v. O'Keefe, 125 Miss: 536; Y. & M. V. Ry. v. Smithart, 111 Miss. 299, 71 So. 562.

White & McCool, of Canton, for appellee.

Our court in the case of L. N. O. & T. Ry. Co. v. Durfree, 13 So. 697, holds, quoting from the syllabus:

"In an action against a railroad company for failure to uncouple its cars so as not to obstruct a highway crossing for more than five minutes, as required by Code 1880, Sec. 1049, plaintiff may recover for injuries resulting from exposure to the weather while waiting an opportunity to cross defendant's track, though there were houses nearby in which he could have obtained shelter."

Southern R. R. Co. v. Floyd, 55 So. 287, 99 Miss. 519.

Counsel complain that the injury complained of was too remote, and was not the proximate result of appellee being put off beyond her station. We submit that the case of Terry v, N. O. G. N. R. R. Co., 60 So. 729, 103 Miss. 679, is in point.

Y. & M. V. R. R. Co. v. Smith, 60 So. 73, 103 Miss. 150; Jarrell v. N. O. & N.E. R. Co., 68 So. 659; Dantzler v. Hurley, 81 .So. 163; I. C. R. R. Co. v. Thomas, 109 Miss. 536; Oliver Bus Lines v. Skaggs, 164 So. 9; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850.

Della Martin, appellee, had notified someone to meet her at Summerland; and in response to such notice a conveyance was there to transport her to her ultimate destination. And appellant's negligence in carrying appellee beyond her station necessitated her walking and carrying her eighteen month old child who could not walk, and another four year old child who, due to its youth, gave out on the way, and with Della Martin it was not a matter of choice, but one of vital necessity. Is it not reasonable to assume that the appellant's agent could have easily anticipated the consequences resulting to Della Martin under the circumstances when placed in the situation which he so carelessly and negligently placed her?

Sun strokes or heat strokes are by no means infrequent occurrences; and it is a recognized fact in the experience of everyone, that one who has been so afflicted, is thereafter most sensitive to the heat of the sun.

Dozier v. Fidelity & Casualty Co., 12 L.R.A. 114; L. N. O. & T. R. R. v. Mask, 2 So. 360, 64 Miss. 738; Y. & M. V. R. R. Co. v. Hardie, 64 So. 1, 106 Miss. 436.

The instructions given defendant were broad and liberal in scope. If any of the instructions complained of are erroneous, which we most emphatically deny, then any error which might have been committed is, to say the most, harmless, and is cured by Rule No. 11 of the Supreme Court.

It is the peculiar province of the jury to assess damages, and when, as in actions sounding in damages merely, the law furnishes no legal rule of measurement, save their discretion under the evidence before them, it is very rare indeed that a court will feel justified in setting aside a verdict merely for excess. It is not enough that, in the opinion of the court, the damages are too high. It may not rightfully substitute its own sense of what would be a reasonable compensation for the injury, for that of the jury. Judges therefore should be very careful how they overthrow verdicts given by twelve men, on their oaths, on the ground of excessive damages.

N. O. & G. N. R. R. Co. v. Hurst, 36 Miss. 660.

Argued orally by John Morgan Stevens, Jr., for appellant and by J. P. White and D. C. McCool, for appellee.

OPINION

Griffith, J.

Appellee, a negro woman, thirty-seven years of age, had arranged to visit her parents, who resided in Jones county about four miles from Summerland; and as a part of that arrangement a conveyance was to be sent to Summerland to meet her on arrival of appellant's noonday bus on Thursday, August 13, 1936. On the morning of that day appellee, with three children, took passage on one of appellant's busses, having procured and presented the necessary tickets to Summerland; and her brother went to Summerland with a conveyance to meet her, as previously arranged.

The bus driver was a new employee on that route and was unacquainted with the route or the stops. At Taylorsville he got on the wrong road, and, after being directed by a passenger to the correct route, appellee took the precaution to advise him that her stop would be next. The driver did not stop at Summerland nor announce his approach to that point, but continued beyond as if there were no such stop. The highway at Summerland had been changed since appellee's last visit to her parents, and she did not realize that Summerland had been reached or passed until the bus arrived at or near Knight's filling station and store, nearly three miles beyond. She thereupon at once informed the driver that he had taken her beyond her station and requested that she be returned. It was not allowable for appellant to turn around in response to this request, but no compliance with it in the alternative was offered, and she was put out at Knight's with her baggage and children.

This was about 12 o'clock on an...