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

• Decision Date: 28 March 1921
• Docket Number: 21462
• Citation: 87 So. 490,125 Miss. 242
• Parties: YAZOO & M. V. R. CO. v. MULLINS
• Court: Mississippi Supreme Court

87 So. 490

125 Miss. 242

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

No. 21462

Supreme Court of Mississippi

March 28, 1921

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

1. Sufficiency OF EVIDENCE.

In a suit for death by negligence of railroad, held, that evidence was sufficient to support verdict by reasonable inferences drawn from facts and circumstances.

2 NEGLIGENCE. Instruction on diminishment of damages for contributory negligence held erroneous.

An instruction on diminishment for contributory negligence which told the jury to award such damages as bears the same proportion to the damages which would have been recoverable had not deceased been guilty of negligence that the negligence of deceased bears to the combined negligence of deceased and defendant is erroneous.

HON. R L. CORBAN, Judge.

Action by Mrs. Clara J. Mullins against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed as to liability, and reversed as to damages only.

Affirmed as to liability, and reversed as to damages.

Chas N. Burch, H. D. Minor, and Ratcliff & Kennedy, for appellant.

The court erred in instructing the jury as to contributory negligence. We feel so clear after a careful reading of the record in this case that a directed verdict should have been given that we hesitate to further prolong this brief. Independent, however, of what we have said above there is a clear error in the instruction to the jury relative to contributory negligence. At the request of the plaintiff the court charged the jury as follows:

"The court instructs the jury for the plaintiff: That even though the jury may believe that the plaintiff was guilty of negligence which proximately contributed to the injuries sustained by him, that this fact would not prevent the plaintiff from recovering in this case, providing the jury further believe from a preponderance of the evidence in this case that defendant was guilty of such negligence as proximately contributed to and was one of the proximate causes of the injuries sustained by Mullins. But that should the jury believe that Mullins and the defendant were both guilty of such negligence as proximately contributed to and caused the injuries sustained by Mullins, that the jury should in that event, not award to the plaintiff the full amount of damages otherwise recoverable in this suit, but should award her an amount which bears the same proportion to the damages which would have been recoverable in this suit had not Mullins been guilty of negligence, that the negligence of Mullins bears to the combined negligence of Mullins and the defendant.

Under this instruction, if the jury had found that both the plaintiff and defendant were guilty of negligence and that two-thirds of the combined negligence was attributable to Mullins and one-third to the Railroad Company, and if the jury had further concluded that the plaintiff's total damages were fifteen thousand dollars then the jury would award two-thirds of fifteen thousand dollars or ten thousand dollars as the damages which the plaintiff could recover. In other words, under this instruction the greater contributory negligence of Mullins the greater amount he would recover, and the less the contributory negligence of Mullins the less amount he would recover.

As said by the supreme court in Norfolk & Western R. R. Co. v. Earnest, 229 U.S. 114: "The statutory direction that the diminution shall be in proportion to the amount of negligence attributable to such employee means, and can only mean that, where the casual negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both; the purpose being to abrogate the common-law rule completely exonerating the carrier from liability in such a case, and to substitute a new rule, confining the exoneration to a proportional part of the damages, corresponding to the amount of negligence attributable to the employee."

In Seaboard Air Line R. Co. v. Tilghman, 237 So. 499, the jury were instructed that they should determine the full amount of damages sustained by the plaintiff and deduct from that whatever amount you think would be proper for the contributory negligence. The supreme court held this instruction erroneous, for reason that it committed to the jury the diminution of damages without stating the standard of diminution prescribed by the Federal Employer's Liability Act, the only standard according to the instruction being whatever the jury's own conception of reasonableness might be. In the last mentioned case the court said:

"It means, and can only mean, as this court has held, that, where the casual negligence is attributable partly to the carrier and partly to the injured employee, he shall not recover full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportionate part of the damages corresponding to the employee's contribution to the total negligence, Norfolk & W. R. Co. v. Earnest, 229 U.S. 111, 122, 57 L.Ed. 1096, 1101, 33 S.Ct. 654, Ann. Cas. 1914C. 172; Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42, 49, 58 L.Ed. 838, 842, 34 S.Ct. 581, Ann. Cas. 1914C, 168.

At the trial the court instructed the jury that, if they found the plaintiff was injured through the concurring negligence of the railway company and himself, they should determine the full amount of damages sustained by him, and then deduct from that whatever amount you think would be proper for his contributory negligence. This was reiterated in different ways and somewhat elaborated, but the fair meaning of all that was said was that a reasonable allowance or deduction should be made for the plaintiff's negligence, and that it rested with the jury to determine what was reasonable. No reference was made to the rule of proportion specified in the statute, or to the occasion for contrasting the negligence of the employee with the total casual negligence as a means of ascertaining what portion of the full damages should be excluded from the recovery. On the contrary, the matter of diminishing the damages was committed to the jury without naming any standard to which their action should conform, other than their own conception of what was reasonable. In this there was a failure to give proper effect to the part of the statute before quoted. It prescribed a rule for determining the amount of the deduction required to be made, and the jury should have been advised of that rule and its controlling force.

It results that the objection to the instruction upon this subject was well taken and should have been sustained. Seaboard Air Line R. Co. v. Tilghman, 237 U.S. 499; Roberts Federal Liabilities of Carriers, sec. 584.

The vice of the instruction as given by the court in the instant case is that it allows the plaintiff to recover in the proportion plaintiff's negligence bears to the combined negligence, whereas the instruction should have been to diminish the recovery in the proportion that the plaintiff's negligence bears to the combined negligence.

The matter has been very accurately stated by the supreme court of Pennsylvania in Waina v. Pennsylvania Co., 251 Pa. 213, 96 A. 461, as follows: "If the issue of the defendant's negligence is determined in favor of the plaintiff, then the jury should consider whether or not he too, was guilty of negligence directly contributing to the happening of the accident, and, if they decide that issue against the plaintiff, then, looking at the combined negligence of the plaintiff and defendant as a whole, and using their best judgment based on the evidence before them, the next material...