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

• Decision Date: 09 March 1931
• Docket Number: 29252
• Citation: 159 Miss. 775,132 So. 742
• Parties: YAZOO & M. V. R. Co. v. HAWKINS
• Court: Mississippi Supreme Court

132 So. 742

159 Miss. 775

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

No. 29252

Supreme Court of Mississippi

March 9, 1931

Division B

1. CARRIERS. In passenger's action for injuries from slipping on banana peeling on platform, instruction covering circumstances authorizing recovery held erroneous.

Instruction in substance authorized verdict for plaintiff if Jury believed, by preponderance of evidence, that railroad failed to perform duty as stated, and permitted banana peeling to remain on platform of car from which plaintiff was just embarking, and if plaintiff without fault stepped on banana peeling and slipped and fell, thereby sustaining injuries complained of.

2 TRIAL.

Error in instructions making concrete application of law to facts stated and authorizing verdict accordingly, if facts stated will not legally sustain verdict, cannot be cured by other instructions.

3 CARRIERS.

To render railroad liable for injuries to passenger who slipped on banana peeling while alighting, presence of banana peeling must have been efficient cause of injuries.

4 EVIDENCE.

Court judicially knows that fresh banana peeling, if stepped upon, will clearly disclose physical signs.

5. CARRIERS.

Excluding testimony showing banana peeling, found where passenger fell when alighting from coach, showed no indication of having been stepped on, held error.

HON. D. M. ANDERSON, Judge.

APPEAL from circuit court of Scott county, HON. D. M. ANDERSON, Judge.

Action by Ross Hawkins against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Reversed and remanded.

Clinton H. McKay, Chas. N. Burch and H. D. Minor, all of Memphis, Tenn., and R. L. Nichols, of Forest, for appellant.

An instruction ignoring the essential element of negligence and making defendant an insurer of the safety of its passengers against banana peelings or other substances calculated to cause injury that may be thrown by careless passengers on the floors or platforms of its cars is erroneous. Defendant is not an insurer of the safety of its passengers. It is liable only for the failure to exercise the highest degree of care.

Louisville, etc., R. R. Co. v. Compiretto, 137 Miss. 766.

Nothing is better settled in this state than that an incorrect instruction is not cured by a correct instruction, and that a verdict resting on contradictory and misleading instructions will not be sustained.

Railroad v. Cornelius, 95 So. 90; R. R. v. Phillips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; R. R. v. McGowen, 92 Miss. 603; McNeil v. Bay Springs Bank, 100 Miss. 271; Soloman v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677; R. R. v. Trotter, 61 Miss. 417, 422; R. R. v. Minor, 69 Miss. 722.

In order for plaintiff to recover he must show that the banana peeling (1) had been put there by an employee of defendant or (2) that it had been put there for such a length of time that it should have been discovered and removed by the employes of defendant.

Meridian Terminal Co. v. Stewart, 143 Miss. 523, 530; Rhodes v. Houston, etc., R. R. Co., 242 S.W. 263, 266; Hotenbrink v. Boston, etc., Ry. Co., 211 Mass. 77, 97 N.E. 624, 39 L. R. A. (N. S.) 419; Proud v. Phil., etc., R. R. Co., 64 N.J.L. 702, 46 A. 710, 50 L. R. A. 469; Pittsburg, etc., R. R. Co. v. Rose, 40 Ind.App. 240, 79 N.E. 1094; Louisville, etc., R. R. Co. v. O'Brien, 163 Ky. 538, 174 S.W. 31, Ann. Cas. 1916E, 1084; Tevis v. United Railways Co., 185 S.W. 738; Prescott, etc., R. R. Co. v. Thomas, 114 Ark. 56, 167 S.W. 486; Jones v. St. Louis, etc., Ry. Co., 5 S.W.2d 101; Conover v. Del., etc., R. R. Co., 92 N.J.L. 602, 106 A. 384.

Percy M. Lee, Colbert Dudley and Frank F. Mize, all of Forest, for appellee.

The instructions complained of by appellant are sustained by the cases of: L. & N. R. R. Co. v. Compiretto, 102 So. 837, 137 Miss. 766; Meridian Terminal Co. et al. v. Stewart, 108 So. 496, 143 Miss. 523.

The instruction secured by the appellant, completely cured whatever error that might be found or charged up against the appellee's instruction. All of the instructions, considered together, clearly and fairly stated the law of the case. A case will not be reversed because of an inaccurate or improper instruction, where all the instructions considered together fairly announce the law.

Circumstantial evidence has been received in every age of the common law, and may arise so high in the scale of belief as to generate full and complete conviction in the minds of the jury of defendant's guilt.

Perminter v. State, 54 So. 949.

Argued orally by Clinton H. McKay, for appellant, and by Percy M. Lee, for appellee.

OPINION

Griffith, J.

Appellee was a passenger on one of appellant's trains, and, while attempting to alight in the usual manner at his destination, he slipped and fell from the platform of the passenger coach, and was injured. In his declaration he alleges that he slipped on a banana peeling which appellant had permitted to be on said platform where passengers alight from the train.

In his testimony in chief appellee does not assert that he slipped on a banana peeling; he asserted only that he slipped and fell down the platform steps. The further testimony of appellee was: That, when he fell, he was caught or helped up by the flagman, who was on the ground at the coach steps to aid passengers in alighting. That the flagman at once asked appellee if he was hurt, to which appellee replied that he did not think he was, whereupon the flagman then asked appellee how he had happened to fall, to which appellee replied that he had slipped. That the flagman then looked to the coach platform, observed a banana peeling thereon, called attention to it, ascended the steps, picked up the peeling, and put it out of the way. This was the first time that any of the witnesses, passengers or trainmen, had seen a banana peeling on said platform, according to the testimony of all the witnesses, including appellee; and all the trainmen testified that it was a part of the business of their work to be always on the lookout for such dangers in the aisles and platforms, and that, although they had been upon or passed over this platform just before the accident and were on the watch, none of them saw a banana peeling on the platform.

However appellee testified that a short distance before his destination was reached he noticed a woman with children, who were eating fruit, and that one of this party dropped a banana peeling on the floor of the coach, and that presently a trainman came along, picked up the banana peeling, and carried it out at the front of the coach, this being the end of the coach at which appellee soon thereafter attempted to alight. It is admitted by appellee that he did not see what the trainman did with the said peeling, and all the trainmen, each for himself, deny that any such thing happened; but appellee maintains that, inasmuch as the train was vestibuled, the jury, if they believed this testimony of appellee, might reasonably draw the inference therefrom that this trainman threw the peeling into the vestibule, and that soon thereafter in some manner it found its way to the platform, and in a position thereupon to cause the fall of appellee and the consequent...