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

• Citation: 168 Miss. 255,150 So. 220
• Decision Date: 16 October 1933
• Docket Number: 30700
• Parties: YAZOO & M. V. R. CO. v. LEFLAR
• Court: Mississippi Supreme Court

150 So. 220

168 Miss. 255

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

No. 30700

Supreme Court of Mississippi

October 16, 1933

Division B

Suggestion Of Error Overruled November 27, 1933.

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

Action by James W. Leflar, minor, etc., against the Yazoo &amp Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Burch, Minor & McKay, of Memphis, Tennessee, for appellant.

The verdict is against the overwhelming weight of the convincing evidence.

Railroad v. Bennett, 127 Miss. 413; Railroad v. Bufore, 150 Miss. 832; Railroad v. Holcomb (Miss.), 105 So. 787; Railroad v. Johnson, 157 Miss. 266; Railroad v. Johnson (Miss.), 141 So. 581; Teche Lines, Inc., v. Mason (Miss.), 144 So. 383; Shaw v. State, 136 Miss. 1; Railroad v. Jones, 137 Miss. 631.

The appellant was entitled to directed verdict because appellee's testimony was unworthy of belief.

Railroad v. Stroud, 64 Miss. 793; Railroad v. Bourgeois, 66 Miss. 5; Dooly v. Railroad, 69 Miss. 648; Railroad v. Lee, 71 Miss. 895; Morehead v. Railroad, 84 Miss. 123; Nichols v. Railroad, 83 Miss. 138; Railroad v. Smith, 111 Miss. 471; Railroad v. Ash, 128 Miss. 417.

In this case, in view of subsequent developments, it appears that the railroad employees did the proper thing, but even if they did not, there is nothing in their conduct to cause one to believe that they ignored the dictates of common humanity. If they made a mistake, it was a mistake of judgment. They were only required to exercise an honest judgment. For a mistake of judgment the railroad company is not liable.

Railroad v. Humphreys, 107 Miss. 396; Dyche v. Railroad, 79 Miss. 361.

At best, the question as to whether the railroad employees acted wisely and as to whether their handling of the case caused or contributed to the necessity for the amputation rests in the realm of speculation and conjecture.

Stevens v. Stanley, 153 Miss. 809; Hercules Powder Co. v. Calcotte, 161 Miss. 860; Tyson v. Utterback, 154 Miss. 381, 390.

The court erred in submitting both counts of the declaration to the jury.

Where the evidence fails to make out a case under one count of the declaration a peremptory instruction should be granted as to that count.

Waterford Lumber Company v. Jacobs, 132 Miss. 638.

Jno. T. Smith, of Cleveland, and Walter D. Jones, for appellee.

There is sufficient evidence in the record that appellee was seen by the train crew and that they did not perform their duties and avoid the injury.

Railroad Co. v. Hawkins, 82 Miss. 209, 34 So. 323; New Orleans, M. & C. R. R. Co. v. Harrison et al., 61 So. 655; Edward Hines Yellow Pine Trustees et al. v. Holley, 106 So. 822; Yazoo & M. V. R. R. Co. v. Daily, 127 So. 575; and Gulf & S. I. R. R. Co. v. Williamson et al., 139 So. 601.

Trespassers on trains and tracks, wrongdoers, and swindling deadbeats, may not be wilfully or wantonly injured, or subjected to imminent risks of deadly peril. This humane doctrine is imbedded in our laws.

Weightman v. Louisville, N. O. & T. Ry. Co., 12 So. 586; Dyche v. Vicksburg, S. & P. R. Co., 30 So. 711; Railroad Co. v. State, 41. Md. 288 et seq.; Yazoo & M. V. R. R. Co. v. Byrd et al., 42 So. 286.

Every reported case which our extended research has revealed places upon one who has assumed care of an injured person, whether he received his injury from his negligence or some other cause, the duty of common humanity, and none of them leave the duty to be determined by the best judgment of the one responsible, as appellant's instruction in this case does. If the rule were as contended by appellant, then under no state of facts could a defendant be held liable, for its employees, in order to relieve the principal, would only find it necessary to state that they did what they honestly thought best.

Railroad Co. v. Decker, 150 Miss. 651, 116 So. 287.

A contention or claim on the part of the employees of appellant to the effect that they used their best judgment will not and cannot prevent the jury from imputing negligence and failure of duty to such employees.

Yazoo & M. V. R. Co. v. Lee, 144 So. 866; Conolly v. Crescent City Railroad Co., 17 Am. S. R. 389; Hughes v. Gregory Bus Lines, Inc., 128 So. 96; Northern Central Railway Company v. State, Use of Price, 96 Am. Dec. 545.

Argued orally by Clinton H. McKay, for appellant, and by Jno. T. Smith, for appellee.

OPINION

Ethridge, P. J.

James W. Leflar sued the Yazoo & Mississippi Valley Railroad Company for a personal injury inflicted upon him by a running train of the appellant, and for neglect to give him attention after the infliction of said injury.

The declaration contains two counts, in the first of which it was alleged that at or about six A. M. June 12, 1932, the plaintiff was near Rosedale, Mississippi, and started toward home, walking, as was the custom in that community, along the defendant railroad company's track, it being the shortest and most convenient way home, and that this custom was well known to the railroad company, its agents and employees. That he walked south about one-half mile on the track and came to a public highway crossing thereon; continued to walk southward a little less than three hundred yards when one of the defendant's passenger trains overtook and struck him, breaking his leg below the knee and otherwise seriously, severely, and permanently injuring him. That there was a strong wind blowing from the south, and that plaintiff did not and could not hear said train approaching until it was almost upon him; that the railroad track at that point is almost straight, and that if the agents and employees of said company had been on the lookout for said crossing, as it was their duty to do, they did see, or had a clear and unobstructed view of, plaintiff's position of peril; that defendant's agents did not ring its bell or blow its whistle, nor give any other signal of its approach, and the plaintiff was not aware thereof until an instant before he was struck; that he then made every effort to escape, but without avail. That plaintiff was struck within three hundred yards of a public highway crossing, and that the bell was not rung, nor the whistle blown continuously for three hundred yards before reaching said crossing, and until said crossing was passed, and that if this had been done the plaintiff would not have received the injury.

In the second count plaintiff realleges all the allegations of the first five paragraphs of the first count, and then alleges that after his injury the plaintiff was taken in charge of the defendant, and it then became their duty, as a matter of law and of common humanity, to remove him to a place where he could receive medical treatment, and to do so within a reasonable time. That it was the defendant's duty to have carried plaintiff to Rosedale, about one and one-half miles from the place of the injury, and where there was a hospital and a number of skilled physicians, one of whom is a railroad physician, and that if this had been done he would not have suffered so intensely, and the amputation of his leg might have been avoided. The delay of time involved, it is alleged, rendered this necessary. It is further alleged that he was in a helpless condition, and that he was placed on a wooden cot which had a railing three inches high around it, and that the plaintiff's leg that had been broken was left hanging therefrom causing him much additional pain and suffering. Plaintiff alleges that when they arrived at Beulah, four miles from the place of the injury, the plaintiff insisted on being put off so that he might procure a physician and receive the needed medical attention; but that, notwithstanding said request and the dictates of common humanity, the agents of defendant refused to procure a physician or to put the plaintiff off at that point. He alleged that after the train left Beulah it proceeded south to Lobdell, and that his condition was again wholly ignored by defendant; that at Benoit the train again stopped and said defendant refused and declined to call a physician; that the next stop of the train was at Scott, where there were skilled physicians, but the defendant refused to call same; and when the train again stopped at Lamont, the defendant again failed and refused to have medical treatment furnished to the plaintiff. There was another stop at Winterville, where there were physicians, but they were not called, and that when the train reached Greenville, after this delay, a physician was called, but, at that time, he could do nothing because of the plaintiff's weakened condition caused by the loss of blood and the stopping of the circulation through his injured leg and the long delay in calling a physician, and he stated that, because of these facts, and because of plaintiff's condition, it was impossible to save same, and his leg was amputated the following day.

The testimony of the plaintiff was to the effect that on the morning of the injury he had gone from his home toward Rosedale, in company with a lady, another white man, and two negro musicians, who had attended a dance at the home of the plaintiff, said musicians making the music therefor; that he and said parties went to a garage about one mile south of Rosedale, where the lady was visiting parties, and where the plaintiff sometimes worked in a garage when there was work to do. It appears that the dance lasted all night, and that the plaintiff had drunk about one-half pint of liquor, and the lady testified that he was not drunk; that after reaching this garage he turned toward his home and walked down the railroad track; that he did not hear the approaching train, nor hear the whistle blown, nor the bell rung,...