Yazoo & M. V. R. Co. v. Daily

• Decision Date: 07 April 1930
• Docket Number: 28545
• Citation: 157 Miss. 3,127 So. 575
• Parties: YAZOO & M. V. R. Co. v. DAILY
• Court: Mississippi Supreme Court

127 So. 575

157 Miss. 3

YAZOO & M. V. R. Co. v. DAILY

No. 28545

Supreme Court of Mississippi, Division A

April 7, 1930

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Action by A. E. Daily against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed, with remittitur.

Affirmed.

H. D Minor, Chas. N. Burch, and C. H. McKay, all of Memphis Tenn., and Chapman, Moody & Johnson, of Indianola, for appellant.

Where the verdict is manifestly wrong, the court will not hesitate to set it aside.

McQueen v. Bostwick, 12 S. & M. 604, 608; Tunstall v. Walker, 2 S. & M. 660; Sims v. McIntyre, 8 S. & M. 327; Young v. Wilson, 24 Miss. 694; Wilson v. Horne, 37 Miss. 481; Ellsey v. Stone, 5 S. & M. 24; McQueen v. Bostick, 12 S. & M. 604; Sims v. McIntyre, 8 S. & M. 327; Barbee v. Reese, 60 Miss. 99; Mobile, etc., R. Co. v. Bennett, 127 Miss. 413; Clark v. Moyse, 48 So. 721; McFadden v. Buckley, 98 Miss. 28, 53 So. 351; Fore v. Railway, 87 Miss. 218, 39 So. 493, 600; Mobile, etc., R. Co. v. Bennett, 127 Miss. 413; Gillis v. Smith, 114 Miss. 686; Fore v. Railway Co., 87 Miss. 218.

After the evidence was completed and the defendant's witnesses had been excused and dispersed, plaintiff was allowed to file a second count to his amended declaration propounding another theory of liability. This was error.

Burres v. Fisher, 27 Miss. 418; Walker v. Brown, 45 Miss. 618; Duggan v. Champion, 75 Miss. 446; Y. & M. V. R. Co. v. Lucken, 137 Miss. 572.

Jas. W. Cassedy, Jr., of Brookhaven, and Franklin, Easterling & Rosenthal, of Jackson, for appellee.

An instruction that even though plaintiff was a trespasser on the railroad track, yet it was the duty of the engineer to avoid striking him if reasonably possible was correct where there was evidence to support it.

Alabama & Vicksburg Railroad Co. v. Kelly, 88 So. 707; Illinois Central Railroad Co. v. Mann, 102 So. 853; Jamison v. Illinois Central Railroad Co., 63 Miss. 33; Y. & M. V. Railroad Co. v. Lee, 114 So. 866; Edward Hines Yellow Pine Trustees et al. v. Holley, 106 So. 822; A. & V. Railroad Co. v. Kelly, 126 Miss. 276, 88 So. 707; Louisville N. O. & T. Railway Co. v. Crayton, 12 So. 271, 69 Miss. 152.

It is the common-law duty of the railroad company to maintain a reasonable lookout for persons who might be on its crossing where it knew that persons were accustomed to cross at such point.

Illinois Central Railroad Co. v. Dillon, 71 So. 809, 111 Miss. 520.

A railroad may induce another to enter its premises by providing an easy and convenient pathway across the premises apparently intended for the use of the public and constantly used by the general public. The term "implied invitation" imports knowledge by the defendant of the probable use of its property so situated and conditioned as to be open and likely to be subjected to such use.

Allen v. Y. & M. V. R. Co., 71 So. 386; Illinois Central Railroad Company v. Williams, 110 So. 510; Columbus & G. Railroad Co. v. Duease, 108 So. 151; Hinds v. Moore, 87 So. 1; Y. & M. V. Railroad Co. v. Williams, 74 So. 835; Illinois Central Railroad v. Dillon, 71 So. 809; Pascagoula St. Railway & Power Co. v. McEachern, 69 So. 185.

The granting or refusal of continuances are matters within the sound discretion of the trial court. Unless it is clear that this discretion has been abused the supreme court will not reverse the cause.

Continental Insurance Company v. Brown, 106 So. 633, 142 Miss. 199.

Courts of law are organized for the purpose of trying causes upon their merits, and only in exceptional cases should the trial court refuse to permit amendments of pleadings or proceedings.

Bishop v. Fennerty, 46 Miss. 570; Greenwood Grocery Co. v. Bennett, 58 So. 482; Merchants & Farmers Bank v. Smith, 64 So. 970, 107 Miss. 105; Yazoo & M. V. R. R. v. Blum, 86 So. 805; Metcalfe v. McCutcheon, 60 Miss. 145; Rogers v. Kline, 56 Miss. 808; Graves v. Gulf & S. I. R. Co., 110 So. 234.

Ann. Cas., 1914D, p. 1275; 21 R. C. L., p. 579, sec. 131.

The unsworn statements of witnesses on a motion for a new trial were entitled to no more weight than a mere contradicted statement of a witness made after the trial of the case and were purely hearsay and not admissible under any theory.

Moore v. Chicago, etc., Railroad Co., 59 Miss. 243; Dickman v. Williams, 50 Miss. 500; 1 Greenl. Evid. 113; Sisson v. Cleveland Railroad Co., 14 Mich. 489, 90 Am. Dec. 252; Smith's Admr., v. Betty (Va.), 11 Gratt 752; Thallhimer v. Brinckerhoff (N.Y.), 4 Wend. 394, 21 Am. Dec. 155; Virginia Railroad Co. v. Sayers (Va.), 26 Gratt. 328; Smith v. State (Miss.), 59 So. 96; Railroad Company v. Clayton, 69 Miss. 46, 230; 20 R. C. L., sec. 76, p. 294, and sec. 80, p. 300; Vanderburg v. Campbell, 64 Miss. 89; Innis v. Yazoo Mississippi Valley R. Co., 79 So. 73; Blake v. Rhode Island Company, 32 R. I. 213, 78 A. 834, Ann. Cas. 1912D, p. 852.

The verdict in this case was not excessive.

St. Louis & S. F. Railway Co. v. Hayes, 136 Miss. 701, 101 So. 548; Mississippi Central Railroad Co. v. Hardy, 88 Miss. 732, 41 So. 505; St. Louis & S. F. R. Co. v. Kirk, 136 Miss. 608, 101 So. 377; Greenwood v. Pentecost, 114 So. 259; A. & V. Railroad Co. v. Dennis, 128 So. 4; N. O. & N.E. Railway Co. v. Jackson, 145 Miss. 702, 110 So. 585; Chesapeake & Ohio Railway Co. v. Carnahan, 60 L.Ed. 979; Railroad Company v. McMicheal, 171 S.W. 115; Railroad Co. v. Harris, 172 S.W. 1129; Yukonis v. Railroad Company, 213 F. 537; Hudgins v. Railway Company, 5 N.C. C. A. 766.

Argued orally by H. D. Minor, for appellant, and by Jas. W. Cassedy and Ed. Franklin, for appellee.

OPINION

McGowen, J.

Appellee, E. A. Daily, sued the appellant, the Yazoo & Mississippi Valley Railroad Co., claiming one hundred thousand dollars damages for personal injuries sustained by him on account of being run over by appellant's passenger train. There was a verdict for twenty-five thousand dollars, a motion for a new trial, which was overruled, and a judgment was entered for appellee, Daily, for said sum, twenty-five thousand dollars, from which judgment the appellant, the railroad company, prosecutes this appeal here.

The original declaration charged that for years the railroad company had maintained a crossing over the railroad track which was used by the appellee, Daily, in going to and from his barn, and that this crossing was in constant and continuous use by the public; that the railroad company's line at this point was straight for some distance north and south, so that the operators of trains had an unobstructed view for many miles of this crossing. The original declaration also charged that the plaintiff, Daily, having gone to his barn, was undertaking to return, and "was walking in the pathway at or near the crossing at a time when there was no train in sight and that he stumbled and fell across said railroad track, and in falling, the plaintiff was knocked unconscious and remained unconscious for some length of time;" that his injury was due to the railroad company's willful, gross negligence in running over plaintiff and crushing both of his legs, cutting off entirely his right leg between the knee and ankle, and his left foot being badly crushed, necessitating the amputation of two toes, and that he was otherwise seriously and permanently injured.

To this the defendant railroad company filed a general issue plea of not guilty, together with a notice that on the trial the defendant railroad company would offer evidence that the plaintiff, Daily, wholly in disregard of his safety, and without negligence on the part of the railroad company, went on the track without noticing the approaching train, paying no attention to it, and, in trying to get off, fell and was run over by the train, which could not have been stopped after the engineer had seen Daily on the track, and that Daily's accident was due to his own negligence, and not to any negligence on the part of the railroad company.

On September 18, 1929, just before the trial of this case, Daily asked leave to file an amended declaration, which was granted him, although the jury had been impaneled and sworn. The amended declaration charged that the maintenance of the crossing by the railroad company was an invitation to the public and to Daily to use said crossing, and that the railroad company was under the duty, at said crossing, to keep a lookout for any person, and to exercise a reasonable care not to injure such person. The declaration was further amended to show that Daily was injured at the crossing, the original declaration having shown that the injury occurred not on, but near, the crossing, thus changing the words from "near the crossing" to "at the crossing." The same pleas were reinterposed by the railroad company to the amended declaration. This amended declaration was objected to by the railroad company, and a continuance was asked, which motion was overruled.

After the evidence was heard and both parties had rested, the court allowed, over the objection of the railroad company, the plaintiff, Daily, to add the following second count to his amended declaration: "For a second count, the plaintiff would show that the plaintiff and the defendant, being situated as set forth in the first count of his amended declaration, and in addition thereto, the plaintiff charges that as a matter of fact at the time he was on the defendant's track in a position of peril and the defendant's servants in charge of said train saw and knew he was on said track in a position of peril at a time when, by the exercise of reasonable care, they could have avoided injuring him, and that said servants of the defendant in charge of said train wrongfully and negligently ran said train over ...