Yazoo & M.V.R. Co. v. Aden
| Decision Date | 13 April 1914 |
| Docket Number | 16,493 |
| Citation | 64 So. 790,106 Miss. 860 |
| Parties | YAZOO & M.V.R. R. COMPANY v. H. B. ADEN |
| Court | Mississippi Supreme Court |
APPEAL from the circuit court of Sharkey county, HON. H. C. MOUNGER Judge.
Suit by H. B. Allen against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Mayes & Mayes, for appellant.
Plaintiff's second instruction is as follows: "The court instructs the jury that if they believe from the evidence it was the custom of the defendant's train to take passengers from Valley Park station when said train stopped there, then the plaintiff has a right to passage on that train and the jury will find for the plaintiff and assess such damages as have been proven, not to exceed ten thousand dollars."
The court will here see that the jury are instructed to find for the plaintiff, provided only they believe from the evidence that it was the custom of defendant's train to take passengers from Valley Park station. That was all. The instruction eliminates everything else. It eliminates all consideration of the question whether the train auditor was actually within the scope of his employment; all consideration of the question whether it was a mere accident all consideration of any other question that arose in the case; and turned the whole thing on the simple and isolated proposition as to whether it was the custom of the railroad company to allow passengers to get on that train at Valley Park. It was practically a peremptory instruction for the plaintiff, with that exception only; and we must submit that it was clear error in the court to give it. The jury ought, in that instruction, to have been required to find the other elements necessary to make up a case of liability. It is elementary that when an instruction undertakes to state the conditions on which a jury must find a verdict, it must state all the necessary conditions, if such an instruction winds up with a charge to the jury to find a verdict.
McLaurin & Thames, for appellee.
The second instruction granted for the appellee is complained of by counsel for the appellant because they say that it eliminated from the consideration of the jury the question whether the train auditor was acting within the scope of his employment. We have sufficiently answered that contention, we think. They also complain that it eliminated from the consideration of the jury the question as to whether it was a mere accident. We think we have sufficiently answered that suggestion above. They say that it eliminated all consideration of any other question that arose in the case. We do not know of any other question that arose in the case, and counsel indicate none. They say that the effect was to grant a peremptory instruction for the appellee, provided only they believed that it was the custom of defendant's train to take passengers from Valley Park when the train stopped there. We find no objection to that instruction. If it was the custom of the train when it stopped at Valley Park to take passengers from that station (and there is abundant testimony in the record to show that it did take passengers when the train stopped there) then it is true as a matter of law that Mr. Aden had a right to take passage on that train.
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