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

• Decision Date: 11 June 1928
• Docket Number: 27071
• Parties: YAZOO & M. V. R. CO. v. GORE. [*]
• Court: Mississippi Supreme Court

117 So. 521

151 Miss. 145

YAZOO & M. V. R. CO. v. GORE. ^[*]

No. 27071

Supreme Court of Mississippi

June 11, 1928

Division B

1 TRIAL. Refusal to enter verdict in accordance with showing that jury reported disagreement under misapprehension verdict could not be reported by nine jurors held not error.

Where after jury had reported to court inability to agree upon a verdict, it appeared that, after retirement, nine of jurors had agreed upon a verdict, but did not know that verdict could be reported upon such agreement, trial court held not to have erred in denying motion to enter a verdict in accordance therewith and leaving case standing as a mistrial the jury never having agreed to report a verdict, but, on the contrary, reporting a disagreement claimed to have been based on an erroneous understanding of the law.

2. RAILROADS. Instruction requiring railroad to prove it was not negligent in crossing collision held erroneous.

Instruction, in action against railroad for injuries sustained in collision at railroad crossing between automobile and a train backing over such crossing, imposing on defendant the burden to show all facts necessary to prove that it was not negligent with reference to such injury, held erroneous.

3. RAILROADS. Instruction authorizing inference of railroad's negligence in crossing collision, if unable to determine cause of injury, held erroneous.

Instruction, in action against railroad for injury in crossing collision between automobile and train backing thereover, authorizing inference of defendant's negligence in case jury was unable to determine whether injury was result thereof, held erroneous.

HON. W. A. ALCORN, JR., Judge.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR., Judge.

Suit by Dr. H. D. Glass against the Yazoo & Mississippi Valley Railroad Company, revived in plaintiff's name by T. N. Gore, as administrator, after his death. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

H. D. Minor, Chas. N. Burch, C. H. McKay and Lowrey & Lamb, for appellant.

It was error on the part of the court below to deny the petition or motion filed by defendant the day after the first trial which was based on the fact that nine of the jurors, shortly after entering the jury room, agreed upon a verdict for the defendant but did not return such a verdict because they thought unanimous consent was necessary. This motion was supported by the affidavit of the nine jurors so agreeing. Cogan v. Ebden, 1 Burr. 383; Prussel v. Knowles, 3 How. 90; Wirt v. Reid, 123 N.Y.S. 706.

Prima-facie statute not applicable at all here. We very earnestly ask the court's consideration of this proposition. The statute can never apply until it has first been clearly established that the locomotive or train was the offender. It was never intended to create a presumption that the plaintiff and his witnesses have given the true version of the facts relating to the accident and that the version given by defendant's witnesses is untrue.

Throughout the great number of cases decided by this court on the prima-facie statute there runs the principle often declared and always adhered to that where all the facts and circumstances are in evidence the jury must determine liability from such facts and circumstances and not upon the statute. A. & V. R. Co. v. Thornhill, 106 Miss. 387; I. C. R. Co. v. Gray, 118 Miss. 614; Hines v. McCullers, 121 Miss. 666; Davis v. Elzey, 126 Miss. 809; Davis v. Temple, 129 Miss. 12; G. M. & N. R. Co. v. Brown, 138 Miss. 39; Southern Ry. Co. v. Simpson, 149 Tenn. 462.

Instruction No. 6 erroneous. This instruction declared that the burden was on the defendant "to show all the facts necessary to prove that defendant was not negligent." Such an instruction has been more than once condemned. Davis v. Temple, 129 Miss. 6; Hines v. McCullers, 121 Miss. 666.

Instruction No. 7 fatally wrong. The substance and effect of this instruction was to direct the jury that "if all the facts and circumstances under which such injury was inflicted are in evidence . . . and further if there is any conflict in the evidence as to the facts and circumstances . . . and the jury is unable to determine, for any reason, whether the injury was the result of negligence of the defendant . . . then it cannot be said that such facts and circumstances are known in a legal sense" and the prima-facie statute operates to require a verdict against the defendant.

The practical result of such an instruction is rather startling. Two vehicles, each driven by a dangerous agency, come into collision. The two men in the automobile say that it was struck by the train. Three men on the train and a disinterested bystander say that the automobile ran into the side of the train. The trial judge told the jury that if they find "all the facts and circumstances" under which the collision occurred are "in evidence and known to the jury" but, "for any reason," they are unable to agree, then the law assumed the guilt of the defendant and they must find in accordance with the testimony of plaintiff and his witness as against the witnesses for the defendant. Such an application of the statute, we confidently believe, cannot be sustained. It is opposed to the uniform course of decisions.

C. & G. R. Co. v. Lee, 115 So. 782 (Miss. 1928). This case is so fresh in the mind of the court that it scarcely needs review. It overruled C. & G. R. Co. v. Fondren, 145 Miss. 679, where it was held that the jury should not be instructed at all on the statute where all the facts and circumstances of the accident were in evidence. The Lee case held that even though all the facts and circumstances are shown, it is still proper to instruct the jury on the statute. There is nothing, therefore, in the opinion in the case of C. & G. R. Co. v. Lee, which at all conflicts with our contention in this case.

Gore & Gore and J. D. Stone, for appellee.

We do not concede that the deliberation of the jury can be inquired into in such a manner as was undertaken in this case. We submit that no such practice is permissible. It is not permissible to obtain and enter a verdict in the manner undertaken by the defendant in this case. 27 R. C. L. 835; James v. State, 55 Miss. 57; Fox v. Smith, 3 Cow. (N. Y.) 23; Jackson v. Hawks, 2 Wend. (N. Y.) 619; Johnson v. Howe et al., 2 Glim (Ill.) 342; Rigg v. Cook, 4 Glim. (Ill.) 336, 46 Am. Dec. 462; Friar v. State, 3 How. 425; Root v. Sherwood, 6 Johns. (N. Y.) 68, 5 Am. Dec. 191. The distinction between the Cogan, the Dalrymple and the Prussel cases, and the case at bar is that in the former cases a verdict was returned by the jury and in the case at bar no verdict was returned by the jury, but the jury repeatedly stated to the court that they had not arrived at a verdict. Walker v. Commissioners, 1 S. & M. 379; Dearing v. Ford, 13 S. & M. 274; Patrick v. Carr, 50 Miss. 207; Herron v. Bondurant, 45 Miss. 688; Trabue v. The State, 56 Miss. 160. See 39 Am. Dec. 175.

In opening the argument for the appellant on the application of the prima-facie statute to the case at bar, counsel laid down two propositions: (1) that the statute can never apply until it has been clearly established, first, that the locomotive or train was the offender, and (2) that it was never intended to create a presumption that the plaintiff and his witnesses have given the true version of the facts relating to the accident and that the version given by the defendant's witnesses is untrue. We agree with counsel as to the correctness of the second proposition, but disagree as to the correctness of the first proposition.

The statute is only a legislative adoption of a rule of evidence, that, certain things being shown, these things speak for themselves, to the effect that the railroad company has not properly operated its locomotives or cars, and in such a case, proof of the injury shifts the burden of proof, or rather, as interpreted in this state, such proof is sufficient to meet the requirement that the plaintiff must sustain the burden of proof, and in case of failure of the defendant to rebut the proof thus established, the plaintiff will prevail in the action. The defendant may escape by showing that it exercised due care in such operation. If it does this, then the plaintiff's action must fail. It would fail by not producing any proof as to the facts relating to the injury. It would fail, also, by producing proof which so far conflicted with the testimony of witnesses for the plaintiff that the jury disbelieved the testimony produced by it. It would fail with all the more certainty, if its proof as produced, showed a case of negligence on its part. The failure of the defendant in this case, resulted from a combination of the last two states of fact.

We do not wish to be understood to concede that either of the two instructions referred to by counsel for the appellant are wrong or should not have been given and upon this question we plant ourselves upon the Thornhill case, 106 Miss. 387, 63 So. 674, and we submit that this case sanctions both of these instructions as a correct statement of the law. In the last case that we have seen, involving this prima-facie statute, Columbus & Greenville Ry. Co. v. Lee (Miss., 1928), 115 So. 782, court reaffirmed the law as announced in the Phillius, Hollingshed and Thornhill cases, among others, and we submit that this case should be affirmed.

Argued orally by H. D. Minor, for appellant, and W. E. Gore and J. D. Stone, for appellee.

OPINION

PACK, J.

Dr. H D. Glass, of Quitman county, instituted suit against appellant railroad company for an alleged injury sustained at a railroad crossing in Clarksdale; it being claimed that the doctor's car was...