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

• Decision Date: 24 February 1902
• Citation: 79 Miss. 735,31 So. 414
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. LOUISA EAKIN
• Court: Mississippi Supreme Court

31 So. 414

79 Miss. 735

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. LOUISA EAKIN

Supreme Court of Mississippi

February 24, 1902

FROM the circuit court of Franklin county. HON. JEFFERSON TRULY Judge.

Mrs Eakin, appellee, was plaintiff in the court below; the railroad company was defendant there. The plaintiff recovered judgment in the court below for $ 2,500, and defendant appealed to the supreme court. The opinion of the court fully states the facts.

Reversed and remanded.

L Brame, Mayes & Harris, and J. M. Dickinson, for appellant.

The plaintiff was clearly guilty of contributory negligence; in fact, her declaration would have been demurrable on this ground, but for its averment that appellant's employees knowingly and intentionally frightened plaintiff's horse and thereby caused her injury. This being the state of the case, the court below refused to instruct the jury, at appellant's request, to the effect that, if the appellee was guilty of negligence which contributed to her injuries, then she could not recover, unless the appellant's employees knowingly or intentionally did something, or refrained from some duty, which caused the injuries. The court below modified the instruction asked by interlining the words "or negligently" after the word "intentionally," so as to authorize a recovery by plaintiff for mere negligence of the defendant, although plaintiff was guilty of contributory negligence. This was manifest error. Brown v. Railroad Co., 77 Miss. 338. It was reversible error. Solomon v. Compress Co., 69 Miss. 319.

H. Cassedy, for appellee.

The most serious contention in this case relates to the modification of the fifth instruction for the defendant. I quote it in full, the added words "or negligently" appearing in italics:

"If the jury believe, from the evidence, that the employees in charge of the engine and cars and pile-driver did not knowingly and intentionally, or negligently, do anything, or refrain from doing any duty, whereby the horse plaintiff was driving was frightened and she was injured, and that her own negligence, or want of reasonable care, contributed directly to her injury (if she was injured at the time and place stated in the declaration), the jury should find for the defendant."

1. The instruction was erroneous as asked. It made the defendant's liability depend upon an act knowingly and intentionally done, when, if it had been done knowingly, the defendant would have been liable, or, if it had been done intentionally, the defendant would have been liable. It made the defendant's liability depend upon the intentional act of the servants alone, and that after knowledge by them of the situation.

2. It made the defendant's liability depend upon the intentional doing of some act, or the intentional refraining from doing some duty by its servants whereby the horse was frightened in the first instance.

3. It placed the burden on the plaintiff of showing the state of mind of these employees, a burden which the law does not require her to bear.

In Railway Co. v. Suddoth, 70 Miss. 265, this court said: "One who has asked an erroneous instruction cannot assign for error its modification, for, if not content with it as modified, he should have declined to read it to the jury."

The defendant received in this instruction, even with the modification, more than it was entitled to, and the modification was correct; the court could have changed the conjunctive "and" to the disjunctive "or" without committing an error, so that the instruction would have read "knowingly, or intentionally, or negligently."

J. McC. Martin, on same side.

The modification of defendant's fifth instruction really put the instruction more favorably for appellant. If a person does a wrong, or inflicts an injury upon another "knowingly" or "intentionally," he must, by necessity, have done it negligently. However, if appellant's agents or employees negligently did anything, or refrained from any duty, whereby the horse plaintiff was driving was frightened, and she was injured, then, undoubtedly, the appellant is liable. The succeeding part of the instruction covers the question of contributory negligence.

Argued orally by L....