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

• Decision Date: 08 February 1932
• Docket Number: 29649
• Parties: YAZOO & M. V. R. Co. v. WADE
• Court: Mississippi Supreme Court

139 So. 403

162 Miss. 699

YAZOO & M. V. R. Co. v. WADE

No. 29649

Supreme Court of Mississippi

February 8, 1932

Division B

1. TRIAL. Any error in instruction that starting train with jerk sufficient to throw passenger off balance constituted negligence held not reversible, in view of further instruction that jerk must be extraordinary.

The instruction given for passenger alleged to have been injured by sudden starting of train before she reached her seat, if erroneous because of statement therein that starting train with jerk sufficient to throw passenger off her balance constituted negligence, in that test was whether jerk was an extraordinary or unusual jerk incident to all railroad travel, was not prejudicial to railroad, in view of instruction for railroad that jerk must be extraordinary and unusual, and that negligence could not be predicated on ordinary normal jerks or jolts incident to railroad travel.

2. APPEAL AND ERROR. Plaintiff and defendant having both secured instructions announcing same rule, defendant held estopped from asserting that rule was erroneous and that refusal of defendant's instruction inconsistent therewith was error (Code 1930, section 586).

Defendant was estopped to assert error in refusing to give alleged correct instruction, where it requested and obtained instruction inconsistent with such refused instruction and which was same as plaintiff's instruction, in view of fact that under Code 1930, section 586, trial court cannot of its own motion grant any instruction, and that only instructions granted by court are those presented by parties.

3 ESTOPPEL.

Party -cannot take inconsistent positions in trial.

4. APPEAL AND ERROR.

If party accepts and reads to jury instruction as modified by court, he is bound thereby, and cannot on appeal complain of error therein (Code 1930, section 586).

5. APPEAL AND ERROR.

If party desires to put trial court in error for modification of requested instruction, he must stand on instruction as refused.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Hinds county HON. W. H. POTTER, Judge.

Action by Mrs. M. T. Wade against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff and defendant appeals. Affirmed.

Affirmed.

May Sanders, McLaurin & Byrd, of Jackson, and Burch, Minor & McKay, of Memphis, Tenn., for appellant.

A railroad company is not negligent in starting its train after a passenger has entered the car and before the passenger has been seated. The test is not whether the jerk was one sufficient to throw plaintiff off her balance or a jerk which did throw plaintiff off her balance, but the test is whether the jerk was an extraordinary and unusual one or merely one of the ordinary jerks or jolts incident to railroad travel.

2 Hutchinson on Carriers, sec. 1111; 5 Elliott on Railroads, sec. 2473; 3 Thompson's Commentaries on Negligence, sec. 2857; 2 Sherman & Redfield on Negligence, sec. 508; Yarnell v. Kansas City, St. S. & M. N. R. Co., 21 S.W. 1; L. & N. R. Co. v. Hale, 44 S.W. 213; Bennett v. Louisville Ry., 90 S.W. 1052; Birmingham Ry. Co. v. Hawkins, 44 So. 983; L. & N. R. Co. v. Banks, 76 So. 472; Ottinger v. Detroit United Ry., 34 L. R. A. (N. S.) 225; C. M. & St. P. R. Co. v. Blume, Ann. Cas. 1918D, 297; 133 Minn. 348, 158 N.W. 418; Louisville Ry. Co. v. Wilder, 136 S.W. 892.

A railroad company is not liable for injuries sustained by reason of the usual and ordinary jerk incident to the movement of a train.

C. & O. Ry. Co. v. Borders, 131 S.W. 388; Lexington Ry. Co. v. Britton, 114 S.W. 295; 10 C. J. 947.

An incorrect instruction is not cured by a correct one and a verdict resting on contradictory instructions will not be sustained.

Yazoo & Miss. Valley R. Co. v. Hawkins, 159 Miss. 780; Railroad Co. v. Minor, 69 Miss. 722; Louisville, etc., R. Co. v. Cuevas, 139 So. 397; Railroad Co. v. Cornelius, 95 So. 90; Railroad Co. v. Philips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; Railroad Co. v. McGowen, 92 Miss. 603; McNeil v. May Springs Bank, 100 Miss. 271;

Hines v. McCullers, 121 Miss. 677.

To hold that the defendant accepted the theory of recovery propounded by the plaintiff imputes to the lawyer who tried the case for the defendant an intent than which nothing was farther from his mind. The question of law as to whether the defendant had the right to start its train as soon as the plaintiff entered the coach or whether it was bound to wait until she had reached her seat was a crucial question in the case. The issue was squarely presented by defendant's counsel when he asked the instruction above, which was refused. He could not possibly have intended to accept plaintiff's theory of the case or concede its correctness.

A litigant may not complain of error invited by him or acquiesced in by him without requesting an instruction announcing the correct principle of law.

I. C. R. R. Co. v. Hardy, 108 Miss. 421, 66. So. 783; Edwards v. Cash, 156 Miss. 507.

The error was invited and procured by the prevailing party and most certainly the losing party cannot be said to have waived the error merely by then presenting instructions as favorable to his side of the case as possible, after the court refused its instruction correctly announcing the law.

The North Chicago Electric Ry. Co. v. Charles Peuser, 190 Ill. 67, 60 N.E. 78; Behen v. Transit Co., 186 Mo. 430.

G. Q. Whitfield, of Jackson, for appellee.

Even if the instruction were erroneous, the appellants would be estopped to question it. A party who invites error will not be heard to complain of having misled the court. Nor is this principle affected by the circumstances that the appellant had asked for other instructions propounding a different doctrine which was refused.

Philip Levy v. Davis, 115 Va. 814; Green v. Wright, 36 Mo. 298; 38 Cyclopedia of Law and Procedure, page 1711; 14 R. C. L., sec. 73, p. 815; 4 Corpus Juris, pp. 707, 708, sec. 2619; Liverpool & London & Globe Insurance Company v. Van Os., 63 Miss. 431; Queen City Manufacturing Co. v. Blalack, 18 So. 800; Wilson v. Zook, 13 So. 351; Clisby v. Mobile & O. R. Co., 29 So. 913, 78 Miss. 948; Illinois Cent. R. Co. v. Jones, 16 So. 300; Yazoo & M. V. R. Co. v. Williams, 39 So. 489; Illinois Central v. Handy, 108 Miss. 421, 66. So. 783; Edwards v. Cash, 126 So. 33; Hitt v. Terry, 46 So. 829.

The instruction refused the appellant was an incorrest announcement of the law as applied to the facts of this case.

Birmingham Railway Light & Power Co. v. Hawkins, 44 So. 983, 16 L. R. A. (N. S.) 1077.

Holmes & Potter, of Jackson, for appellee.

Any possible error contained in the plaintiff's instruction was amply cured by the instruction granted on behalf of the defendant; the instructions must be read as a whole and, having been read as a whole, there could be no question that any man of reasonable intelligence could not have possibly been misled by the plaintiff's instruction.

Skates v. Mississippi, 64 Miss. 644; Children v. Ford, 10 Smedes & Marshall, 25; New Orleans Railroad Company v. Fields, 46 Miss. 573; Clysh v. Mobile & Ohio Railroad Company, 78 Miss. 937, 29 So. 912; Y. & M. V. Ry. v. William, 87 Miss. 344, 39 So. 489; Mississippi Central Ry. Co. v. Heard, 80 Miss. 731, 41 So. 505; Warren County v. Rand, 81. Miss. 395, 40 So. 481; Hitt v. Terry, 46 So. 829.

All questions of whether or not the plaintiff was allowed a sufficient time to reach her seat may be treated as immaterial, because the singular issue as to liability was the sudden and violent jerking of the train as it started.

Y. & M. V. Railroad Company v. Thompson, 61 So. 455, 104 Miss. 351.

Where no special circumstances are shown and the passenger having boarded the car and being in the act of stepping from the platform into the door of the car the company could not be held as a matter of law to have been guilty of negligence in starting the car in the usual manner and without any unnecessary jerk. But on the other hand, it held that where the evidence for the plaintiff showed that the car did start with a negligent, sudden and unusual and unnecessary jerk, then the company would be liable.

Birmingham Railway, Light & Power Co. v. Hawkins, 44 So. 983, 16 L. R. A. (N. S.) 1177.

Hamilton & Todd, of Jackson, for appellee.

All passengers, strong or weak, have a right to assume that other cars will not be backed against those which they are upon in such a manner as to endanger their safety while proceeding to their seats, or that the train or car will not be given an extraordinary jerk or jar whereby they are thrown down and injured.

2 Huchinson on Carriers, sec. 111.

The railroad is liable if it negligently starts the train while a passenger is in the act of getting on, or negligently backs a car against it, or so negligently starts it with an unusual and extraordinary jerk as to throw down and injure a passenger before he can get a seat.

5 Elliott on Railroads, sec. 2475.

Under the instructions given by the court in this case for the plaintiff and for the defendant, when taken together the jury were clearly instructed that in order for the plaintiff to recover, she must prove that the train started with a negligent jerk, and not an ordinary jerk incident to the movement of the train, and that a negligent jerk was the proximate cause of the injury. The rule is that in passing on a ruling of a lower court this court will look to the whole record, and, if in the light thereof no harm appears to have resulted to the appelant from the ruling complained of, the judgment will be affirmed, though the ruling may have been erroneous when made.

Planters' Lumber Co. v. Sibley, 93 So. 440.

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