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

• Decision Date: 03 December 1906
• Docket Number: 12,342
• Citation: 89 Miss. 308,42 So. 286
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. BERTHA BYRD ET AL
• Court: Mississippi Supreme Court

42 So. 286

89 Miss. 308

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. BERTHA BYRD ET AL

No. 12,342

Supreme Court of Mississippi

December 3, 1906

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

Bertha Byrd and others, appellees, were plaintiffs in the court below; the railroad company, appellant, was defendant there. The suit was for damages on account of the alleged wrongful death of one Hiram Byrd, a brother of the plaintiffs, having neither wife, child, father nor mother, caused by being thrown as was charged from a rapidly moving train.

From a judgment in favor of the plaintiffs the defendant railroad company appealed to the supreme court; and the plaintiffs their recovery being much less than the sum demanded by them prosecuted a cross appeal. The facts are fully stated in the opinion of the court.

Affirmed.

Mayes &amp Longstreet, and Williamson, Wells & Peyton, for appellant and cross-appellee.

It was error in the trial court to refuse the peremptory instruction asked by the defendant company. Such instruction should have been given for two reasons.

First. Damages could be recovered only upon proof that Byrd's death was caused by injuries negligently inflicted by defendant, and there is no such proof in the case. The evidence, instead of disclosing that Byrd's death resulted from injuries sustained when he fell from the moving train, affirmatively and indisputably, shows that his injuries thus incurred were trivial. Four reputable physicians, who knew Byrd both before and after the fall, testified that these slight injuries did not in the slightest degree contribute to his death. Two of them made critical examination of Byrd's injuries immediately after the accident, and one of them further testified that, prior to the date of the excursion trip, Byrd had become a victim of consumption, and in any event could not have lived in this climate longer than a few months. Another physician testified that Byrd's death was caused, not by the fall from the train, but by consumption. If it be true, as a legal proposition, that plaintiffs were only entitled to recover upon proof that the death resulted from injuries sustained from the fall, then the peremptory instruction should have been granted in defendant's favor, for there was no proof that the death did so result, the uncontroverted testimony of the persons best in position to know being that the death did not result from the fall.

Second. If the fall was the cause of Byrd's death, he was the author of his own misfortune. He was voluntarily and unnecessarily upon the car platform while the train was moving. His placing himself there was not under coercion or direction of the employes of the defendant company. If he was thrown from the platform by the swaying or lurching of the train while rounding the curve, the mishap was the result of his own negligence. If he himself could not recover, the plaintiffs, his next of kin, cannot. For a passenger to sit or stand upon the platform of a car in a rapidly moving train is negligence. Unless the act can be excused by the circumstances which brought it about, it is negligence as a matter of law. Dougherty v. Yazoo & M. V. R. R. Co., 84 Miss. 502 (s.c., 36 So. 699). We especially call the court's attention to the numerous authorities collated in the reported brief of counsel for appellee in the case cited.

The court further erred in modifying the first, fifth, seventh and eighth instructions asked by defendant. These instructions as asked were predicated of undisputed evidence which, in fact, would have sustained a peremptory instruction for defendant. The court refused to grant these instructions as asked, and of its own motion modified them so as to leave to the jury to determine whether or not defendant had been guilty of negligence proximately causing Byrd's death after he fell from the train. This was manifest error. It is undisputed that Byrd fell from the platform when the conductor was in another part of the train, and it was at least two or three minutes before the conductor became aware of the mishap. Another train was following close behind, upon the same track, and the conductor could not stop the train without endangering the lives of the passengers. Immediately on reaching the next station, aid was sent to Byrd, and the physician of the defendant company attended to his injuries. It was accordingly unfair and erroneous for the court below to modify the instructions, and permit the jury to find for plaintiffs, although defendant was not blamable for the fall, on the idea that it was guilty of negligence after the fall, approximately contributing to the death of Byrd. What else could defendant have done to help Byrd? He was picked up as soon as practicable, and carried to Harriston and placed in charge of the defendant's competent physician.

The modification of these instructions mentioned was erroneous for another reason. There was no evidence to show that any injuries suffered by Byrd at the time of his fall proximately contributed to his death. The jury were invited to enter the field of conjecture, and to find as a fact that some neglect of Byrd on defendant's part after his fall contributed proximately to his death, when there was no evidence to support the idea.

The court below erred in overruling defendant's motion to set aside the verdict because of error in the instructions, and because it was contrary to the law and the evidence. A carrier is exonerated in law when the proximate and moving cause of an injury is the act of the injured person. No man can charge another in damages for negligently injuring him when he has failed to exercise reasonable care himself in the premises.

A passenger who voluntarily and unnecessarily places himself on the platform of a rapidly moving car cannot hold the railroad company responsible for injuries of which his position, voluntarily and unnecessarily taken, is the efficient cause. Fisher v. West Virginia Pittsburgh R. R. Co. (W. Va., 1896), 33 L. R. A., 69.

The conclusion is manifest, from all of the evidence, that Byrd was a man addicted to the excessive use of intoxicating liquors and was intoxicated while on the train; that he had voluntarily stationed himself upon the platform of the moving car, and as the train rounded a curve, lost his balance and fell, and from the fall sustained trivial injuries. His death several months after the mishap resulted from consumption, with which he had been afflicted for a long time before he fell from the car. The defendant, though bound to a high degree of care, was not an insurer of the safety of the deceased. Byrd was the author of his own misfortune, and alone responsible for his fall.

Green & Green, for appellees and cross-appellants.

Counsel for the defendant railroad company, in assigning for error the refusal of the circuit court to grant peremptory instruction in defendant's favor, contend, first, that there was no evidence that the death was caused by the wrongful act of the company; and, second, that there was contributory negligence upon the part of the deceased.

Counsel for defendant are in error in alleging that there is an entire absence of proof that Byrd's death was caused by the injuries inflicted. The condition of Byrd before the injury was proved, one of the physicians testifying that there was practically nothing the matter with his lungs. The evidence disclosed that when Byrd was thrown from the train, he was dragged for a distance of one hundred yards by the train moving thirty miles an hour, and was finally thrown by its momentum down a high embankment and rendered unconscious for a very long time. He was, moreover, left by the defendant to endure the heat of a June day, and subsequently exposed to an unusually hard, drencing rainstorm. Certainly a jury of ordinary intelligence was amply justified in saying that the death was brought about by defendant's acts of omission or negligent failure to act in leaving him thus without assistance. The first contention of opposing counsel is without foundation in fact.

Was deceased guilty of contributory negligence? The jury, drawn from the different walks of life, passed upon this question under most liberal instructions in favor of the defendant; their verdict settled it. Justice TRULY, in Yazoo, etc., R. R. Co. v. Humphrey, 83 Miss. 734 (S.C., 19 So. 105), states that "contributory negligence is simply want of ordinary care in the situation, " and in his opinion cites A. & V. R. R. Co. v. Jones, 73 Miss. 110 (S.C., 36 So. 154); V. & M. R. R. Co. v. McGowan, 62 Miss. 682. In Bell v. Southern Ry. Co., 87 Miss. 234 (S.C., 30 So. 821), WHITFIELD, C. J., says: "Whether the company was guilty of negligence, and whether the plaintiff was guilty of contributory negligence, were questions of fact which a jury should have passed upon. So many questions are integrated usually into the solution of the question of negligence that it must be a rare case of negligence which the court should take from the jury." This statement is quoted and approved by Justice CALHOON in Stevens v. Y. & M. V. R. R. Co., 81 Miss. 195 (S.C., 32 So. 331). It is stated, in Beach on Contributory Negligence, sec. 450, that "in general it cannot be doubted that the question of negligence is a question of fact, not of law. Whenever there is any doubt as to facts, it is within the province of the jury to determine the question." And see Barden v. Railroad Company, 121 Mass. 426; Elliott on Railroads, 1633.

There was a very violent jerk of the train at the place where Byrd was thrown therefrom, so violent, in fact, as to be seen by persons on the wayside, who observed the passage of the train. The jerk occurred at a point where there was insufficient gravel on...