Yazoo & M.V.R. Co. v. Messina, 16861

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtCOOK, J.
Citation67 So. 963,109 Miss. 143
PartiesYAZOO & M.V.R. CO. v. MESSINA
Docket Number16861
Decision Date05 April 1915

67 So. 963

109 Miss. 143

YAZOO & M.V.R. CO.
v.
MESSINA

No. 16861

Supreme Court of Mississippi

April 5, 1915


APPEAL from the circuit court of Holmes county. HON. MONROE MCCLURG, Judge.

Suit by V. P. Messina against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

R. V. Fletcher and Mayes & Mayes, for appellant.

Barbour & Henry, Burch & Stricker and C. D. Potter, for appellee.

OPINION [67 So. 964]

[109 Miss. 145] COOK, J.

Mr. Messina instituted suit against the railroad company for personal injuries, and recovered a judgment for ten thousand dollars. The defendant railroad company appeals.

The evidence for plaintiff discloses that plaintiff had been employed by the railroad company as a switchman; that the day before the injury he had decided [109 Miss. 146] to lay off and go to Memphis, and in pursuance of this purpose he left Jackson on a freight train to go to Canton; he traveled deadhead, with the permission of the train crew, to Canton. About midnight of the next day he and several companions secured the permission of the engineer of the north-bound passenger train to ride on the tender of the locomotive from Canton to Memphis. The engineer denied this, and said he had no knowledge that the party was on the tender. Before the train left Canton the engineer was given a telegram from the train dispatcher, which read: "More or less rain all over district to-night." The plaintiff, Messina, and his companions boarded the locomotive as it pulled out of Canton, and rode to Durant on the tender. When the train reached Durant the engineer received another telegram from the train dispatcher, reading:

"No. 5 reports water high between Beatty and Sawyer; have had very hard rains in there past three hours; water over the track but no damage reported, at Sawyer."

The train then proceeded on its way. There was no scheduled stop between Durant and Winona. After the train passed Beatty, it was then in the storm zone. The engineer testified that he then reduced his speed from fifty miles per hour to thirty-five miles per hour. At the place where the derailment occurred, and for some distance south thereof, a creek paralleled the railroad right of way, crossing the track under a trestle about thirty yards wide. About two-hundred and fifty yards south of this trestle there was a curve in the track, and the trestle could not be seen from a north-bound train until the curve was rounded. The locomotive was running thirty-five miles per hour according to the engineer's testimony, and fifty to sixty miles according to plaintiff's evidence, when the water over the track came in view of the engineer, after he had passed the curve. The engineer said that he could not have stopped [109 Miss. 147] his train in less than one-hundred and fifty yards, meaning, perhaps, that if the train had remained on the track, it would not have been possible to have stopped the train in less than one-hundred and fifty yards. When the danger was discovered the emergency brakes were applied; the engine ran one-hundred yards, leaving the track in the meantime, and finally "laid down," with the machinery still running. Three of the cars attached to the locomotive were derailed, plaintiff was caught between the tender and one of these cars and permanently crippled. The extent of the injuries and the consequent suffering justified a verdict for the amount rendered by the jury.

There is no material conflict in the evidence, except upon the question as to whether or not plaintiff was riding on the engine with the knowledge and consent of the engineer. This question was a question of fact, and its solution was submitted to the jury. It is conceded by counsel for plaintiff that plaintiff was a trespasser, or a mere licensee, and that the defendant owed him no duty, except to refrain from willfully and wantonly injuring him. If the engineer did not know that plaintiff was riding on the engine, it is conceded that plaintiff must lose his case. Accepting this as a correct interpretation of the law of the case, we find that the disputed question of fact was submitted to the jury.

Appellant earnestly insists that the facts as to just how and why the wreck occurred were proven, and therefore the instruction upon the prima facie statute (section 1985, Code of 1906) should not have been given. This contention, we think, is not supported by the record. If the evidence for plaintiff in regard to the speed of the train is to be taken as true, the negligence of the engineer was so flagrant that the court would have been warranted in instructing the jury peremptorily that his conduct was wanton and in reckless disregard of [109 Miss. 148] the consequences. If it can be said that the engineer's estimate of the speed of the train raised a question of fact for the jury's decision, we think the conflict of evidence on this point was submitted to and decided by the jury.

The instruction based upon the statute was a little too stout in some particulars, one of which is that the jury should not have been told, "if all the evidence leaves it doubtful," as to whether the defendant has not met the burden. As recently pointed out by this court in Gentry v. Gulf & Ship Island [67 So. 965] R. R. Co., 109 Miss. 66, 67 So. 849, this language places a greater burden upon the defendant than the law requires it to sustain. In order to meet the prima facie case made by the proof that the injury was inflicted by a running train, it is not necessary for the defendant to do more than to disclose the facts, and if this is done the liability of defendant depends upon the facts and not upon the statutory presumption.

The argument upon the alleged error of the trial court in refusing to give to the jury the counter...

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39 practice notes
  • Hartford Accident & Indeminity Co. v. Delta & Pine Land Co, 33674
    • United States
    • Mississippi Supreme Court
    • April 29, 1940
    ...Federal Practice (3 Ed.), p. 683, Sec. 963; Brinkerhoff etc., Co. v. Hill, 281 U.S. 680, 74 L.Ed. 1113; Messina v. I. C. R. Co. (Miss.), 67 So. 963, 240 U.S. 395, 60 L.Ed. 709; I. C. R. Co. v. Messina, 111 Miss. 884, 72 So. 779. That at issue in the U.S. Supreme Court was this right, invirt......
  • Killings v. Metropolitan Life Ins. Co, 33885
    • United States
    • Mississippi Supreme Court
    • January 2, 1940
    ...passed and the fact that this Court assumed that position as to waived by the patient in the case of Yazoo & M. V. R. Co. v. Messina, 109 Miss. 143, 67 So. 963, and especially Illinois Cent. R. Co. v. Messina, 111 Miss. 884, 72 So. 779, until this date, this privileged communication between......
  • Vance v. State, 33130
    • United States
    • Mississippi Supreme Court
    • September 12, 1938
    ...Miss Grace Vance. Section 1536, Code of 1930; Y. & M. V. R. Co. v. Decker, 150 Miss. 621, 116 So. 287; Y. & M. V. R. R. Co. v. Messina, 109 Miss. 143, 67 So. 963; Coca Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479; U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115; Watkins v......
  • Meloon v. Davis, 1558.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 13, 1923
    ...37 Utah 612, 109 P. 1025; Illinois Central R.R. v. Messina, 240 U.S. 395, 36 Sup.Ct. 368, 60 L.Ed. 709; Yazoo & M.V.R. Co. v. Messina, 109 Miss. 143, 67 So. 963; Illinois Central R.R. v. Messina, 111 Miss. 884, 72 So. 779; Illinois Central R.R. v. Cole, 113 Miss. 896, 74 So. 766; Railroad v......
  • Request a trial to view additional results
39 cases
  • Hartford Accident & Indeminity Co. v. Delta & Pine Land Co, 33674
    • United States
    • Mississippi Supreme Court
    • April 29, 1940
    ...Federal Practice (3 Ed.), p. 683, Sec. 963; Brinkerhoff etc., Co. v. Hill, 281 U.S. 680, 74 L.Ed. 1113; Messina v. I. C. R. Co. (Miss.), 67 So. 963, 240 U.S. 395, 60 L.Ed. 709; I. C. R. Co. v. Messina, 111 Miss. 884, 72 So. 779. That at issue in the U.S. Supreme Court was this right, invirt......
  • Killings v. Metropolitan Life Ins. Co, 33885
    • United States
    • Mississippi Supreme Court
    • January 2, 1940
    ...passed and the fact that this Court assumed that position as to waived by the patient in the case of Yazoo & M. V. R. Co. v. Messina, 109 Miss. 143, 67 So. 963, and especially Illinois Cent. R. Co. v. Messina, 111 Miss. 884, 72 So. 779, until this date, this privileged communication between......
  • Vance v. State, 33130
    • United States
    • Mississippi Supreme Court
    • September 12, 1938
    ...Miss Grace Vance. Section 1536, Code of 1930; Y. & M. V. R. Co. v. Decker, 150 Miss. 621, 116 So. 287; Y. & M. V. R. R. Co. v. Messina, 109 Miss. 143, 67 So. 963; Coca Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479; U. S. F. & G. Co. v. Hood, 124 Miss. 548, 87 So. 115; Watkins v......
  • Meloon v. Davis, 1558.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 13, 1923
    ...37 Utah 612, 109 P. 1025; Illinois Central R.R. v. Messina, 240 U.S. 395, 36 Sup.Ct. 368, 60 L.Ed. 709; Yazoo & M.V.R. Co. v. Messina, 109 Miss. 143, 67 So. 963; Illinois Central R.R. v. Messina, 111 Miss. 884, 72 So. 779; Illinois Central R.R. v. Cole, 113 Miss. 896, 74 So. 766; Railroad v......
  • Request a trial to view additional results

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