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

Decision Date03 June 1940
Docket Number34116
Citation195 So. 489,188 Miss. 725
PartiesYAZOO & M. V. R. CO. v. FIELDS
CourtMississippi Supreme Court

April 22, 1940

Suggestion Of Error Overruled June 3, 1940.

APPEAL from the circuit court of Warren county HON. R. B. ANDERSON Judge.

Action by Rebekah Fields against Yazoo & Mississippi Valley Railroad Company, for damages caused by a fire. From an adverse judgment, defendant appeals. Affirmed.

On suggestion of error. Suggestion of error overruled.

Affirmed. Suggestion of error overruled.

Dent Robinson & Ward, of Vicksburg, V. W. Foster and E. C. Craig both of Chicago, Illinois, and Lucius E. Burch, Jr., Frank F. Roberson, and Clinton H. McKay, all of Memphis, Tenn., for appellant.

Appellee's gin manager, B. V. Saxon, with knowledge of situation, had opportunity to prevent all damage and loss but failed to do so.

Fire spread across spur track to gin property along a narrow path. It could have been controlled by slight effort and at no expense.

Appellee may not recover damages which could have been avoided by the exercise of due care on her part.

The rule disallowing damages for avoidable consequences is universal.

Am. Digest, Century Ed., Damages, Secs. 119 et seq.; Am. Digest, Dec. Ed., Damages, Sec. 62; Am. Digest (2 Dec. Ed.), Damages, Sec. 62; Am. Digest (3 Dec. Ed.), Sec. 62; Am. Digest (4 Dec. Ed.), Sec. 62; General Digest, Annual Sec. 62; 4 Am. Law Institute's Restatement of the Law, "Torts, " Sec. 918; 15 Am. Jur. 439, Sec. 40; 17 C. J. 776, Sec. 101; 1 Sutherland on Damages, (4 Ed.), p. 318, Sec. 90; 1 Sedgwick on Damages, 390, Secs. 204 and 214-c.

The rule of avoidable consequences is not related to contributory negligence.

4 Am. Law Institute's Restatement of the Law, "Torts", Sec. 918, Comment a; Crosby v. Plummer, 111 Me. 355, 89 A. 145; Western Real Estate Trustees v. Hughes, 172 F. 206; Dippold v. Cathlamet Lbr. Co., 111 Ore. 199, 225 P. 202; Iseman v. Burnell, 125 Me. 57, 130 A. 868.

The defense is available under plea of the general issue.

Grayson v. Brooks, 64 Miss. 410, 1 So. 482; Yazoo, etc., R. Co. v. Sultan, 106. Miss. 373, 63 So. 672.

This court has always recognized and applied the avoidable consequences rule.

Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349; North Am. Accident Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; Mars v. Hendon, 178 Miss. 157, 171 So. 880; Gilbert v. Crosby, 160 Miss. 711, 135 So. 201, 142 So. 507; Scott & Green v. Green River Lbr. Co., 116 Miss. 524, 77 So. 309; Yazoo, etc., R. Co. v. Sultan, 106 Miss. 373, 63 So. 672; New Orleans, etc., R. Co. v. Echols, 54 Miss. 264; Yazoo, etc., R. Co. v. Ragsdale, 46 Miss. 458; Friedlander v. Pugh, Slocomb & Co., 43 Miss. 111.

The rule is applicable in cases involving fire set out on railroad rights of way.

51 C. J. 1254, Sec. 1452; 3 Elliott on Railroad (3 Ed.), p. 781, Sec. 1762; Louisville, etc., R. Co. v. Sullivan Tbr. Co., 138 Ala. 279, 35. So. 327; Stewart v. Quincy, etc., R. Co., 142 Mo.App. 322, 126 S.W. 1003; Smith v. Ogden, etc., R. Co., 33 Utah 129, 93 P. 185; Wisconsin, etc., Lbr. Co. v. Scott, 167 Ark. 84, 267 S.W. 780; Louisville, etc., R. Co. v. Jackson, 123 Ark. 1, 184 S.W. 450; Talley v. Courter, 83 Mich. 473, 53 N.W. 621; Aune v. Austin-Williams Tbr. Co., 52 Wash. 356, 100 P. 746; Eaton v. Oregon Ry., etc., Co., 31 Ore. 342, 49 P. 879; Moses & Sons v. Lockwood, 295 F. 936; Denver, etc., R. Co. v. Morton, 3 Colo.App. 155, 32 P. 345; Ide v. Boston, etc., R. Co., 83 Vt. 66, 74 A. 401; Toledo, etc., R. Co. v. Pindar, 53 Ill. 447, 5 Am. Rep. 57; Hogle v. New York, etc., R. Co., 28 Hun (N. Y.), 363; Harrison v. Mo. Pac. R. Co., 88. Mo. 625.

Plaintiff must accept responsibility for Saxon's failure to do what the law required of him.

Ill., etc., R. Co. v. McKay, 69 Miss. 139, 12 So. 447.

On the undisputed proof appellant was entitled to a peremptory instruction at the close of all the evidence.

4 Am. Law Institute's Restatement of the Law, "Torts, " Sec. 918; North Am. Accident Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; 3 Elliott on Railroads (3. Ed.), p. 781, Sec. 1763; Louisville, etc., R. Co. v. Sullivan Tbr. Co., 138 Ala. 279, 35 So. 327; Smith v. Oregon, etc., R. Co., 33 Utah 129, 93 P. 185; Wisconsin, etc., Lbr. Co. v. Scott, 167 Ark. 84, 267 S.W. 780.

Chaney & Culkin, of Vicksburg, and Clements & Clements, of Rolling Fork, for appellee.

Appellant cannot raise and rely in Supreme Court on point not raised or relied on in lower court.

Huston v. King, 80 So. 779, 119 Miss. 347; Anderson v. Lee, 48 Miss. 253; A. H. George & Co. v. L. & N. R. R., 40 So. 486, 88 Miss. 306; Adams v. City of Clarksdale, 48 So. 242, 95 Miss. 88; Estes v. Memphis & C. Ry., 119 So. 199, 152 Miss. 814; Miss. Valley Trust Co. v. Brewer, 128 So. 83, 157 Miss. 890; Mitchell v. Finley, 137 So. 330, 161 Miss. 527.

Nor will the Supreme Court review a case upon some ground or theory not submitted to the jury.

Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Miss. Power & Light Co. v. May (Miss.), 161 So. 755; Anderson v. Maxwell, 48 So. 227, 94 Miss. 138; Tolbert v. Melton, 9 S. & M. (17 Miss.) 9.

The lower court was right in refusing peremptory instruction and submitting case to jury and also refusing special instruction complained of by appellant, because special instruction does not present the law in Mississippi.

Heafner v. C. & G. R. Co., 190 So. 1; St. Ry. & Power Co. v. McEachern, 109 Miss. 380; Sec. 511, Code 1930.

Contributory negligence is not bar to recovery for personal injuries or damage to property. If appellant desired to invoke this should have submitted proper instruction covering it.

Lindsey Wagon Co. v. Nix, 108 Miss. 814; Goodman v. Lang, 158 Miss. 204; M. & O. R. R. v. Campbell, 114 Miss. 803; G. & S. I. R. Co. v. Saucier, 139 Miss. 497; Packing Co. et al. v. Banning, 155 Miss. 376; Brister et al. v. I. C. R. Co., 84 Miss. 33.

It is admitted that the appellant's section crew set out these fires, and that none of the crew came back to see anything about it or make any inspection. The property of appellee was burned by fire spreading from the right-of-way. Certainly it was a question for the jury to pass on as to whether the appellant was guilty of any negligence which proximately caused the injury and damage in this case, or at least contributed thereto, or they should believe that the appellee, through her servant, was guilty of contributory negligence, which we deny.

G. & S. I. R. Co. v. Saucier, 139 Miss. 497; Packing Co. et al. v. Branning, 155 Miss. 376.

Under our contributory negligence statute, the appellee, Mrs. Fields, did not assume any risk, and if the appellant desired to take advantage of the comparative negligence statute, it was its duty to ask an instruction covering same, and it didn't do it. Or it should have set out in the instruction it did ask the necessary requirements of the law, and based it upon the ground of the sole proximate cause of the appellee, which it did not do, before it could tell the jury by instruction that it should bring in a verdict for the defendant.

Byrnes v. City of Jackson, 140 Miss. 656.

We respectfully submit that the law relied on by the appellant in its brief, is not applicable to the case at bar, neither to the facts and circumstances, nor is it the law requested by it. And that this was a question for the jury to pass on as to whether or not the negligence of the railroad was either the proximate cause or the contributing cause, and if either, the plaintiff was entitled to recover. And that if there was contributory negligence, which we deny, on the part of the appellee, the failure of the appellant to invoke the rule under Section 511, Code of 1930, in the lower court, was its own fault and cannot now be availed of.

Argued orally by C. H. McKay, for appellant, and by W. H. Clements, for appellee.

Smith, C. J., Griffith, J., delivered the opinion of the court on suggestion of error.

OPINION

Smith, C. J.

This appeal is from a judgment against the appellant for negligently permitting fire set out by it on its premises to enter the premises of the appellee and consume a cotton gin house and plant thereon.

The appellant's railroad at Anguilla runs north and south, and the appellee's gin is on the west side of the railroad. A spur-track leaves the main line of the railroad about two hundred yards north of the gin and runs south, passing within a few feet of the gin. The ground between the main line and this spur-track was covered with dry grass and weeds, as was also the ground on which the gin was. About nine A. M. of the day on which the gin was burned, the appellant's section foreman, with several helpers, set fire to the grass between the two tracks, for the purpose of clearing the ground therefrom. They left there around eleven A. M., without, as the event determined, completely extinguishing the fire after the grass and weeds between the tracks had been consumed. At about twelve A. M., other parties, including Saxon, the appellee's gin foreman, saw fire in several places along the spur-track, but not on the appellee's premises. Saxon put out some but not all of the fire and left the premises. He could have easily put all of it out, and we will assume that danger of its crossing the spur-track was then apparent. Later in the afternoon, the fire crossed the spur-track and destroyed the appellee's gin house and plant.

Counsel for the appellant argue only two of their assignments of error.

1st. That the court below should have granted the appellant's request for a directed verdict of no liability; and if mistaken in this, that 2nd, the court erred in refusing another instruction requested by the plaintiff.

The rule of law invoked by the appellant in...

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