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

• Decision Date: 28 November 1927
• Docket Number: 26644
• Parties: YAZOO & M. V. R. CO. v. LEE. [*]
• Court: Mississippi Supreme Court

114 So. 866

148 Miss. 809

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

No. 26644

Supreme Court of Mississippi

November 28, 1927

Division B

Suggestion of Error Overruled Jan. 9, 1928.

APPEAL from circuit court of Scott county, HON. G E. WILSON, Judge.

Action by Mrs. Mary Busic Lee against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed as to liability but reversed, and remanded for a new trial as to damages alone.

Reversed and remanded.

Hirsch, Dent & Landau, Chas. N. Birch, H. D. Minor, Clinton H. McKay, R. H. & J. H. Thompson and May, Sanders & McLaurin, for appellant.

A directed verdict should have been granted the defendant or, in any event, the verdict and judgment should be set aside because opposed to the great weight of the evidence. The plaintiff seems to have tried her case on the theory that the case was identical in character with the case of A. & V. Ry. Co. v. Kelly, 126 Miss. 276.

There are three essential points in which facts in instant case differ from facts in Kelly case. (a) In Kelly case (126 Miss. 276) the party fatally injured was a deaf mute child--in the instant case the party fatally injured was an adult of wide experience. (b) In the Kelly case it was difficult for the child to get off the track onto a place where there was safe footing--in the instant case there was no such difficulty. (c) In the Kelly case the injured party was a child and naturally without any experience as to the schedule or operation of trains--in the instant case the injured party was familiar with the train schedule and got his mail and paper daily from the very train which killed him. (d) The engineer in the Kelly case testified that up to the time he applied his brakes in emergency and blew his whistle and did whatever else he could to stop the train, the boy had been clear of the track and was not in danger. The countervailing testimony by several witnesses was that the boy was walking along the track the whole time. It is manifest, therefore, that the jury in that case rejected the testimony of the engineer in its entirety as they had the right to do in view of the testimony for the plaintiff, thus leaving the Railroad Company without any testimony at all that any care was exercised by the engineer.

In the present case the jury had no right to reject the testimony of this appellant's engineer for there was no countervailing evidence. On the contrary, the testimony of the engineer here is supported by a number of witnesses for the plaintiff and by the physical facts.

The engineer exercised that decree of care which an engineer of ordinary prudence would exercise under similar circumstances and conditions as to stopping the train. Elliott on Railroads, sec. 1796; 33 Cyc., p. 800, et seq.; M. & O. R. R. Co. v. Stroud, 64 Miss. 793; New Orleans R. R. Co. v. Bourgeois, 66 Miss. 5; Dooly v. Railroad, 69 Miss. 648; Illinois Central R. R. Co. v. Lee, 71 Miss. 895; Moorehead v. Railroad, 84 Miss. 123; Nichols v. Railroad, 83 Miss. 139; Railroad v. Smith, 111 Miss. 471; Y. & M. V. R. R. Co. v. Huff, 111 Miss. 491; Hubbard v. Southern Ry. Co., 120 Miss. 841; Illinois Central R. R. Co. v. Ash, 128 Miss. 417; 22 R. C. L., p. 964, sec. 198.

Verdict contrary to great weight of convincing evidence. Railroad Co. v. Bennett, 127 Miss. 415. The trial judge erred in failing to weigh the evidence and determine whether the verdict was opposed to the great weight of the convincing evidence. Dodson v. State, 67 Miss. 331; Felton v. Spiro, 78 F. 576; Railroad v. Lee, 95 Tenn. 388; Railroad v. Brown, 96 Tenn. 562; Railroad v. Neely, 102 Tenn. 701; 20 R. C. L., p. 273; Tate v. Gray, 4 Sneed. (Tenn. ) .

The trial court erred in admitting evidence that the railroad was used as a walkway between Dr. Lee's home and the station at Foot. There was no allegation in the declaration of any such use. Hines v. McCullers, 121 Miss. 675.

The court erred in admitting evidence as to the wealth of the defendant, and in instructing at all as to punitive damages, and in instructing the jury that wealth of defendant might be taken into consideration. Lopez v. Jackson, 80 Miss. 684.

The court erred in the instruction to the jury as to the measure of damages. Davis v. McCullers, 126 Miss. 533.

E. O. Sykes, W. C. Eastland and Mize & Dudley, for appellee.

Counsel for appellant first argue that they were entitled to a peremptory instruction. They appreciate that the Kelly and Holly cases are serious obstacles in their path and attempt to differentiate these cases from the case at bar. For instance, they say that Kelly was a boy twelve years old while Dr. Lee was an adult. An infant twelve years old is subject exactly to the same rules and regulations relating to negligence and contributory negligence as is an adult. Below that age, and to six years, the presumption is that he is subject to the same rules, but that presumption may be rebutted. Consequently there is no legal difference here.

Counsel cites the case of M. & O. R. R. Co. v. Stroud, 64 Miss. 793. Under this authority the engineer was bound to stop the train.

Again under Moorehead v. Railroad Company, 84 Miss. 123, which in turn is a quotation from the Christian case, 71 Miss. 237, was it not apparent to this engineer or ought it not to have been apparent to him that Dr. Lee was in peril, and then was it not the duty of the engineer to do what he could to stop that train and save human life?

We don't think it necessary to further refer to the authorities cited by counsel for appellant. Some of them deal with the contributory negligence when that was a complete bar to recovery, but the above two cases, however, announce the general rules consistently followed by this court. In addition to those authorities, we may be pardoned for briefly referring the court to the following cases where the facts are very similar to the one at bar. Fuller v. Illinois Central R. R. Co., 100 Miss. 706; Yellow Pine Trustees v. Holley, 142 Miss. 247; A. & V. R. R. Co. v. Kelly, 126 Miss. 278, 88 So. 707; Jamison v. I. C. R. R. Co., 63 Miss. 33; New Orleans M. & C. R. Co. v. Harrison, 105 Miss. 18, 61 So. 655, and authorities therein cited; Gulf, M. & N. R. Co. v. Arrington, 107 So. 378.

Counsel next argue that the verdict is contrary to the great weight of convincing testimony. On the contrary, as we have attempted to point out to the court, the verdict absolutely coincides with the overwhelming weight of testimony. We submit that there could have been on other verdict than the one rendered.

It is next argued that the trial judge erred in failing to weigh the evidence on a motion for a new trial. Counsel argue this proposition at length and cite some Federal court and Tennessee decisions, which are interesting but not in point. This entire argument is based on the remarks made by the circuit judge at the conclusion of the hearing of the motion for a new trial as appears on record. The attention of the court is called to the fact that this is not the order which overruled the motion. In the order it says that the court did consider the motion and the evidence and is of the opinion that it should be overruled. This is absolutely passing on everything that the circuit judge is required to pass on.

The question of the reinstatement of a former judgment or verdict of a jury was last discussed by this court, as we recollect, in Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470. The court did not reinstate this judgment, but the question of the reinstatement of judgments is therein discussed. We have not analyzed the authorities cited by counsel on this proposition because we do not think they are in point for the above reasons. However, in glancing through the brief of counsel, we note that these opinions or remarks of the judges seem to constitute a part of the order or judgment of the court, which is not true here.

Counsel next argue that it was error to admit testimony that the railroad was used as a walkway between Dr. Lee's home and the station. The declaration in this case was framed under the prima-facie statute. The plaintiff had a right to show the jury all of the physical conditions as they existed at Foot at the time of the accident. This is always done in every case. The jury are entitled to understand and know the surroundings. It had a bearing on the fact that Dr. Lee certainly was not committing suicide.

The court instructed the jury that Dr. Lee was a trespasser. The instructions for the plaintiff are absolutely correct. It was not attempted to invoke any use of this pathway in an instruction, or to get an instruction on anything that was not alleged in the declaration as did the plaintiff in the case of Hines v. McCullers, 121 Miss. 675, which is relied upon by counsel for appellant. In this case the jury, by their instruction, were confined exactly to the proper issues. The only error in these instructions is that they were entirely too favorable to the appellant.

As to damages see Y. & M. V. R. Co. v. Cockerham, 134 Miss. 898; Railroad Co. v. Moore, 101 Miss. 780.

Argued orally by Chas. N. Burch, for appellant, and W. C. Eastland and E. O. Sykes, for appellee.

OPINION

ETHRIDGE, J.

The appellee, Mrs. Mary Busic Lee, brought suit against the railroad company for the death of her husband, Dr. Lee, who was killed on the 23d day of November, 1926, by a train of the appellant, while the deceased, Dr. Lee, was walking along the track of the railroad company with his back to an approaching train. It was alleged in the declaration that Dr Lee's perilous position on the said track was known to the defendant's servants and agents in charge of said engine and train of cars, "but, notwithstanding the premises, the defendant...