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

• Decision Date: 10 January 1938
• Docket Number: 32808
• Parties: YAZOO & M. V. R. CO. v. LAMENSDORF et al
• Court: Mississippi Supreme Court

177 So. 50

178 So. 80, 180 Miss. 426

YAZOO & M. V. R. CO. v. LAMENSDORF et al

No. 32808

Supreme Court of Mississippi

January 10, 1938

(Division B.)

1 TRIAL.

Where scene of automobile or railroad crossing accident can be disclosed by photographs, diagrams, and measurements, jury should not be permitted to view scene especially where situation existing at time of accident has changed.

2 EVIDENCE.

In action for death of motorist killed at railroad crossing witnesses' testimony must be considered, if reasonably possible, on theory that all are honest and trying to tell the truth.

3 EVIDENCE.

In action for death of motorist killed at rairoad crossing, where disinterested witnesses, testitying that they heard train's whistle and bell, are supported by corroborating affirmative testimony of other disinterested witnesses, and only testimony in opposition is negative testimony of persons who did not hear whistle or bell because their attention was elsewhere, such negative testimony is insufficient to overturn affirmative testimony.

4. DEATH. Negligence.

Where there is a conflict in evidence in personal injury or death action, a jury case is presented.

5. APPEAL AND ERROR.

In determining whether evidence supported jury's verdict for plaintiffs in action for death of motorist killed at railroad crossing, the Supreme Court was required to review testimony, carefully scrutinize all cases wherein verdicts are rendered on unsatisfactory evidence, and determine judicially from all facts and circumstances whether there was sufficient evidence to uphold verdict.

6. RAILROADS.

In action for death of motorist killed at railroad crossing on morning of fair day, evidence that there was a statutory stop sign at crossing, that motorists went upon tracks and stopped, that witnesses saw train and heard bell and whistle, and that engineer reduced speed, did not support verdict for plaintiffs on ground of railroad's negligence (Code 1930, section 6124).

ON SUGGESTION OF ERROR (Division B. Jan. 10, 1938.) [178 So. 80. No. 32808.]

1. APPEAL AND ERROR. In determining whether evidence supported jury's verdict for plaintiffs in action for death of motorist killed at railroad crossing, the Supreme Court was required to weigh testimony of witness who estimated that motorist was stalled on track for 45 seconds with respect to ordinary human experience and observation. 2. RAILROADS. In action for death of motorist killed at railroad crossing, testimony of witness who estimated that motorist was stalled on track for 45 seconds and testified that train could have easily been stopped before reaching crossing presented a possibility but was incredible as a reasonable probability and insufficient as a basis for verdict and judgment, in view of testimony that train was in full view, that its whistle and bell were sounded, and that other persons in vicinity were aware of its approach. 3. EVIDENCE. The scintilla of evidence rule is not recognized in Mississippi, but verdicts must be based on substantial and reasonably believable evidence. 4. EVIDENCE. A witness who assumes to measure a short period of time with accuracy discredits himself if his mind was in a state of anxiety or expectation at time of occurrence about which he is testifying.

Division B

November 29, 1937

APPEAL from the circuit court of Bolivar county HON. WM. A. ALCORN, JR., Judge.

Suit by Mrs. Jennie E. Lamensdorf and another against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

On suggestion of error. Former opinion adhered to and suggestion of error overruled.

Reversed and judgment for appellant. Suggestion of error overruled.

Shands, Elmore, Hallam & Causey, of Cleveland, Burch, Minor & McKay, of Memphis, Tenn., and Edw. C. Craig, of Chicago, Ill., for appellant.

The instructions granted to plaintiffs and defendants are in irreconcilable conflict and do not furnish a guide to the jury to reach a verdict.

G. & S. I. R. Co. v. Adkinson, 117 Miss. 118; Y. & M. V. R. Co. v. Williams, 114 Miss. 236; Hackney v. I. C. R. Co., 33 So. 723; Ry. Co. v. Eakin, 79 Miss. 735; I. C. R. Co. v. Sumrall, 96 Miss. 860; Miss. Cent. R. Co. v. Hanna, 98 Miss. 609; G. M. & N. R. Co. v. Arrington, 107 So. 378; Marx v. Berry, 176 Miss. 1; Columbus & G. R. Co. v. Coleman, 172 Miss. 514; N. O. & N. E. R. Co. v. Wheat, 172 Miss. 524; Y. & M. V. R. Co. v. Bruce, 98 Miss. 727; Lackey v. St. L. & S. F. Ry., 102 Miss. 339.

Plaintiffs' Instruction "E" assumed that deceased was not aware of the approaching train when proof showed he was.

Reed v. Railroad, 94 Miss. 639.

Plaintiffs' instructions misdirected the jury as to whose duty it was on the locomotive to keep a lookout. to what extent a lookout should be kept, and as to speed of train.

M. & O. R. Co. v. Johnson, 157 Miss. 266; Hines v. Moore, 124 Miss. 500; Hancock v. I. C. R. Co., 158 Miss. 668; 22 R. C. L. 988, 1011; Lackey v. St. Louis, etc., R. Co., 102 Miss. 338; Penney Co. v. Morris, 173 Miss. 710; Y. & M. V. R. Co. v. Bruce, 98 Miss. 727; McComb Box Co. v. Duck, 174 Miss. 449.

Instructions for plaintiffs do not correctly state the doctrine of last clear chance and are in conflict with the instructions for defendant.

The doctrine of last clear chance is based upon the idea that the injured party has negligently placed himself in a place of peril; that the defendant actually saw him in his perilous position in time to prevent any injury but failed to do what a reasonably prudent person should do to prevent the injury. In such cases, the courts deem the defendant's last act of negligence to be the proximate cause of the injury and the injured party's original act of negligence as the remote cause of the injury.

The doctrine does not apply where the plaintiff's negligence concurs in the injury and continues up to the moment of the accident. In other words, where the injured party's fault existed as late as the defendant's, the doctrine does not apply.

Clemens v. Chicago, etc., Ry., 144 N.W. 345; Holmes v. So. Pac. Ry. Co., 31 P. 835; Dyerson v. Union Pac. R. Co., 87 P. 680; Southern Ry. Co. v. Bailey, 67 S.E. 365; Gilbert v. Mo. Pac. Ry. Co., 139 P. 380; Restatement, Law of Torts, secs. 479-480, pages 1253-1257; Y. & M. V. R. Co. v. Williams, 114 Miss. 236; St. Louis, etc., R. Co. v. Summers, 173 F. 358; Dunworth v. Grand Trunk Ry. Co., 127 F. 307; Fuller v. I. C. R. Co., 100 Miss. 705.

The last clear chance doctrine does not apply in this case because the deceased knew that the train was approaching, knew of his own peril, and could have moved to a place of safety before the engine reached him. In failing to do so, he was guilty of an act of negligence "which continued up to the moment of the accident," which is "not concurrent merely, but really subsequent to, that of the engineer, as he, and not the engineer, had the last clear opportunity of avoiding the accident."

Y. & M. V. R. Co. v. Green, 167 Miss. 137; Thompson v. Miss. Cent. R. Co., 175 Miss. 547.

The court below erred in permitting a view of the scene of the accident at the particular time.

Jones v. State, 141 Miss. 894; Section 2066, Code of 1930; Great Atlantic, etc., Co. v. Davis, 171 So. 550; Gulf, M. & N. R. Co. v. Kelly, 171 So. 883.

Much evidence offered plaintiffs on the measure of damages was incompetent and speculative.

Avery v. Collins, 171 Miss. 636; Natchez Coca Cola Co. v. Watson, 160 Miss. 173; Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72; Y. & M. V. R. Co. v. Barringer, 138 Miss. 296; Gulf Ref. Co. v. Miller, 150 Miss. 68; Sec. 510, Code of 1930, Missouri, etc., R. Co. v. Canada, 59 A. L. R. 743; I. C. R. Co. v. Humphreys, 174 Miss. 459, 164 So. 22; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859; Fuller v. I. C. R. Co., 100 Miss. 712, 106 Miss. 72; Y. & M. V. R. Co. v. Williams, 114 Miss. 237; Bounds v. Watts, 159 Miss. 307; Y. & M. V. R. Co. v. Mullen, 158 Miss. 774; Y. & M. V. R. Co. v. Lee, 148 Miss. 809; Doherty v. Miss. Power Co., 173 So. 287; I. C. R. Co. v. Dodds, 97 Miss. 865; Trico Coffee Co. v. Clemens, 168 Miss. 748; Gilbert v. Mo. Pac. Ry., 139 P. 382.

The court below should have sustained defendant's motion for a new trial.

Thompson v. Miss. Cent. R. Co., 175 Miss. 547; Billingsley v. I. C. R. Co., 100 Miss. 612; Y. & M. V. R. Co. v. Cox, 132 Miss. 564; Fore v. Ala., etc., R. Co., 87 Miss. 211; M. & O. R. Co. v. Bennett, 127 Miss. 413; M. & O. R. Co. v. Johnson, 157 Miss. 266; C. & G. R. Co. v. Buford, 150 Miss. 832; Universal Co. v. Taylor, 174 Miss. 353; Gulf, etc., R. Co. v. Holcomb, 105 So. 787; Teche Lines, Inc., v. Mason, 144 So. 383; G. & S. I. R. Co. v. Blaylock, 166 So. 373; Justice v. State, 170 Miss. 96; Miss. Power Co. v. Stiglets, 158 So. 907.

Marx J. Borod, of Memphis, Tenn., for appellees.

An engineer and the fireman on a railroad engine have an inviolable duty to keep a proper lookout at crossings or in approaching crossings.

Hines v. Moore, 124 Miss. 500; Railroad v. Williams, 114 Miss. 243; Illinois Central v. Dillon, 111 Miss. 526; Power Co. v. McEachern, 109 Miss. 380; Illinois Central v. Williams, 144 Miss. 804; Miss. Central v. Smith, 154 So. 533.

Where there is an obstruction upon the right of way of a railroad company, obscuring the view of the travelers at a crossing, the railroad is chargeable with notice that such obstruction will obscure the view of the engineer and fireman.

Railroad v. Williams, 144 Miss. 804.

If a railroad company in the management of its business causes an unusual peril it must meet such peril with unusual precautions and failing in this is guilty of negligence.

52 C J. 247, sec. 1829; Railway v. French, 69 Miss. 121; Hancock v. I. C. R. R., 158 Miss. 668; Ham v. Maine...