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

• Decision Date: 26 March 1928
• Docket Number: 26769
• Citation: 150 Miss. 621,116 So. 287
• Parties: YAZOO & M. V. R. CO. v. DECKER. [*]
• Court: Mississippi Supreme Court

116 So. 287

150 Miss. 621

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

No. 26769

Supreme Court of Mississippi

March 26, 1928

Division A

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by Mrs. Willie May Decker, administratrix against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed in part, and reversed in part.

Judgment reversed and cause remanded.

Hirsh, Dent & Landau, Chas. N. Burch, H. D. Minor and Clinton H. McKay, for appellant.

We submit, for the reasons hereinafter set forth, that the defendant was entitled to a directed verdict. If, however, we are mistaken in this, the case should be reversed because the verdict is opposed to the great weight of the convincing evidence. R. R. v. Bennett, 127 Miss. 415.

The plaintiff bases her right of recovery on the theory that the decedent lost his life while employed in interstate commerce as the proximate result of a violation of the Federal Safety Appliance Act and the amendments thereto. It is charged in the declaration, and plaintiff undertook to prove, that decedent lost his life as the result of a fall caused by insecure handholds or grabirons on the side of a box car being transported in interstate commerce. It is admitted that two handholds or grabirons were found loose at one end, at McNair, a station seven miles below Harriston, where it is claimed the decedent fell. Both plaintiff and defendant were unable to show by eyewitnesses how or when the handholds or grabirons came loose. The uncontradicted evidence discloses that the fastenings of the grabirons or handholds had been tampered with. The ends of the bolts seem to have been chiseled off, and the nuts screwed off and the bolts driven out of the side of the car, where they were found by the conductor and the deceased, when they went to inspect the car at McNair. The evidence as to the condition of the bolts and where they were found, indicated that bolts had been purposely removed. The evidence of Shannon Rollins (colored) who claims to have been an eyewitness to the alleged fall, is that he saw the deceased fall from the defective car at Harriston. There is no credible evidence that the deceased received any internal or substantial injury in the alleged fall from the car.

The burden of proof in this case is upon the plaintiff to show that decedent was injured and lost his life as the proximate result of the alleged defective safety appliance. This, we submit, was not done, and therefore the court below should have directed a verdict for defendant on the facts, or in any event have set aside the verdict as opposed to the great weight of the convincing evidence.

The court below, over the objection of defendant, on cross-examination of Conductor Allen, admitted Exhibit "A." The witness affiant in the affidavit--admitted that he signed the affidavit, answering the questions therein propounded and gave his reasons why he did so. This ex parte affidavit was in no sense competent. 22 C. J. 207; Rankin v. Fidelity Ins. Co., 189 U.S. 242; Railroad Company v. Langdon, 71 Miss. 146; Railroad v. Turnage, 95 Miss. 860; 49 So. 840; Pilkinton v. Railway, 70 Tex. 226, 7 S.W. 805; Green v. New York C. & St. L. Ry. Co., 153 N.E. 299; Prestonsburg Superior Oil Gas Co. v. Vance, 47 A. L. R. 487; Early's Adm'r v. Louisville H. & St. L. Ry. Co., 72 S.W. 348; G. M. & N. R. R. Co. v. Hudson, 142 Miss. 542, 107 So. 370; Jones on Evidence (2 Ed.), 1071; Adams v. Brown, 16 Ohio St. 75; State v. Wyse, 33 S.C. 582; Pulliam v. Canterell, 77 Ga. 536; Vicksburg & Meridian R. Co. v. O'Brien, 119 U.S. 99; Simms v. Forbes, 86 Miss. 417; Southern Ry. Co. v. Gary, 241 U.S. 337.

If this hearsay evidence, that is, the alleged conversations of Conductor Allen with Ross, Flowers and Abbott, was put in to prove the main fact in issue, that is, whether Decker fell to the ground and was injured and died by reason of a loose grabiron, then clearly this evidence is admissible as all the alleged conversations took place long after the alleged injury and could not therefore, be part of the res gestae. As already shown, Conductor Allen was not an agent of the defendant who had a right to bind the defendant by a narration of what had occurred, when such narration was not part of the res gestae.

On the other hand, if the alleged conversations were offered to impeach the witness on mere collateral matters, that is, not on the main fact at issue, then the plaintiff was bound by Conductor Allen's denial of these conversations with Ross, Flowers and Abbott and the evidence of Ross, Flowers and Abbott was inadmissible to impeach Conductor Allen on such collateral matters.

Clearly under the authorities the proof of death--Exhibit A--and the statements of the three witnesses, supra, admitted over repeated objections, were incompetent and highly prejudicial to the defendant, and justify a reversal of this case. The court erred in not admitting the evidence of Dr. Podesta, disclosing that whisky was contained in a bottle taken from body of deceased and what, in his opinion caused his death. Y. & M. V. R. R. v. Messina, 109 Miss. 143.

All of Dr. Podesta's evidence should have been admitted. The Mississippi privileged communication statute has no application to a case under the Federal Employers' Liability Act where the effect of enforcing such statute would be to prevent the defendant from introducing proof on the main point in issue. The construction and application given the statute renders the same unconstitutional, in violation of the Fourteenth Amendment of the Federal Constitution. N. O. & N.E. R. R. Co. v. Jackson, 145 Miss. 702; N. O. & N.E. R. R. v. Harris, 247 U.S. 367; Y. & M. V. R. R. Co. v. Mullins, 249 U.S. 531; Central Vermont R. R. Co. v. White, 238 U.S. 537; Railroad v. Turnipseed, 219 U.S. 35; N.Y. Central R. R. Co. v. Winfield, 244 U.S. 147; Erie R. R. v. Winfield, 244 U.S. 172; N.Y. Central v. Tonselito, 244 U.S. 361.

Instructions of the court as to the duty of the company in maintaining safe handholds are in direct conflict. By instruction No. 1 for the plaintiff there was a positive duty, not merely to keep the handholds or grabirons in reasonable safe condition, but in absolutely safe condition. And under said instruction No. I there is absolutely no excuse or escape from liability in the event the handhold came loose, even though Decker intentionally caused it to be loosened.

Under instruction No. 2 for the defendant, however, the defendant was only bound to the exercise of a reasonable degree of care. Under instruction No. 2 also the defendant was not liable if the grabiron had been loosened by a trespasser or some other unauthorized person. Davis v. Kennedy, 266 U.S. 147; Blachfield on Instructions to Juries, section 24a; A. & V. R. R. v. Cox, 106 Miss. 33; L. N. O. & T. R. Co. v. Phillips, 12 So. (Miss.), 825; Mahaffey v. Russell, 100 Miss. 122; Railroad Co. v. McGowen, 92 Miss. 603; McNeil v. Bay Springs Bank, 100 Miss. 271; Solomon v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677.

Instruction G is as follows: "The court instructs the jury for the defendant that the mere fact that the plaintiff was found dead does not entitle the plaintiff to recover. The fact, if it be a fact, that the handholds or grabirons were loose and that he fell therefrom does not entitle the plaintiff to recover unless the jury believe from a preponderance of the credible evidence that the decedent sustained injuries thereby, if such were the fact, which solely and proximately produced his death." The above instruction stated the plain law of the case. Under the evidence there was one of two things that happened: First, Decker died as the result of injuries sustained from a fall brought about by the breaking or loosening of handholds; second, Decker died of acute alcoholism. There is not the slightest indication in the record that he died as the result of both of these conditions. He died as a result of either one or the other and from no other cause. Instruction No. G was therefore consistent with the evidence, and should have been given.

It is conceded that the plaintiff's right of action is governed and controlled by the Federal Employers' Liability Act, the Federal Safety Appliance Acts and the amendments thereto. Under the Federal statutes, as construed by the decisions of the Federal courts interpreting the acts and controlling the facts of this case, the plaintiff was restricted to a recovery of the present worth of the pecuniary benefits of the designated persons named in the state, which might have been expected from the continued life of the deceased. C. & O. R. R. Co. v. Kelly, Admr., 241 U.S. 485; Kansas City Southern Railroad Co. v. Leslie, 238 U.S. 599.

The court will observe that no damages are sought in the declaration or in the instructions for the conscious pain and suffering, if any, endured by the deceased from the time it is claimed the fatal injury was received until his death, as provided by an amendment to the Federal statute of April, 1910 (36 U. S. Statutes at Large, c. 143)--(U. S. Comp. St., sections 8662, 8665). Therefore, it is only necessary for us to consider the damages plaintiff was entitled to recover under the statute for the pecuniary loss sustained.

The jury was not properly instructed, in accordance with the Federal statute, as to the proper measure of damages limiting the same to the present worth of such sum as would reasonably compensate the widow and the three children for the pecuniary benefits of which they were deprived by the death of the husband and father, as disclosed by the evidence. The court does not confine the loss to pecuniary benefits of which the widow and children were deprived, but authorized...