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

• Decision Date: 27 October 1930
• Docket Number: 28806
• Parties: YAZOO & M. V. R. CO. v. BEASLEY et al
• Court: Mississippi Supreme Court

130 So. 499

158 Miss. 370

YAZOO & M. V. R. CO. v. BEASLEY et al

No. 28806

Supreme Court of Mississippi

October 27, 1930

Division A

Suggestion of Error Overruled, November 24, 1930.

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

Action by W. T. Beasley and others against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

Affirmed.

May, Sanders, McLaurin & Byrd, of Jackson, and Chas. N. Burch, of Memphis, Tenn., for appellant.

The negative evidence of a witness that he did not hear the train signals is overcome by the positive testimony of the witnesses that the signals were given.

Elliott on Railroads, sec. 1653; M. & O. R. Co. v. Johnson, 126 So. 827; Seaboard Air Line Ry. v. Myrick, 109 So. 193; 10 R. C. L. 1011; Foley v. N. Y. Central R. Co., 18 Ann. Cases, pp. 632-633.

When the plaintiff's intestate and his companion, the driver of the automobile, were shown to be guilty of gross negligence the defendant was entitled to the benefit of an instruction from the court to that effect as a matter of law.

G. & S. I. R. R. Co. v. Atkinson, 117 Miss. 118; G. M. & N. R. Co. v. Seymore, 105 So. 767.

The verdict is excessive. There was no testimony that the decedent made any contributions to his family or that he lived with his family or that he had any sort of social or family intercourse with the members of his family, and hence there is no predicate in the evidence for allowing damages for loss of companionship, society, service or gratuities. The value of the decedent's life expectance is not an element of damages to the decedent.

Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72, 102 So. 470; Y. & M. V. R. Co. v. Barringer, 138 Miss. 296, 103 So. 86; Y. & M. V. R. Co. v. Lee, 114 So. 866.

Howie, Howie & Latham, of Jackson, for appellees.

Where there is a conflict in the evidence questions of negligence of railroad company in collision of train with automobile at crossing and of negligence of driver of automobile, with whom decedent was riding as a guest, being the proximate cause of the accident is for the jury.

G. M. & N. R. Co. v. Hudson, 107 So. 359.

The material conflicts in the testimony make it a question of fact for the jury to decide whether or not the defendant railroad company was guilty of negligence.

Hines v. Moore, 87 So. 1.

However, any contributory negligence on the part of the deceased would only diminish the amount of the verdict and the amount of this verdict leads us to believe that the jury took into consideration the contributory negligence of the deceased. In fact, we are of the opinion that the railroad company has no cause whatever to complain of the verdict or of the amount of the same.

I. C. R. Co. v. Dillon, 71 So. 811.

This court is committed to the doctrine that under section 515, Hemingway's 1927 Code the proper parties have a right to recover the pecuniary value as estimated by the jury of the loss of companionship and society.

G. & S. I. R. R. Co. v. Boone, 82 So. 338; Gulf Refining Co. v. Miller, 121 So. 483.

Argued orally by J. O. S. Sanders and A. J. McLaurin, for appellant, and by J. H. Howie and Virgil Howie, for appellee.

OPINION

McGowen, J.

The appellees, the father, mother, brothers, and sisters, and the father suing as administrator of Roy Beasley, deceased, by their declaration, charged that Roy Beasley was killed by the negligent operation of a train of the appellant railroad company where its railroad crosses South State street in the city of Jackson, Mississippi. The negligence, charged succinctly, stated was that the train of the appellant was backed over the South State street crossing in the nighttime at an unlawful rate of speed, without a flagman on the rear end of the train or on the ground preceding the train; that a flagman was not maintained at the crossing, as required by an ordinance of the city of Jackson; that no warning by bell or whistle was given of the approach of the train to the crossing; that the deceased, Roy Beasley, who was riding in an automobile, as a guest of one George Clark, the driver thereof, was struck by "being backed into by the train," alleged to be negligently operated; and that he sustained injuries thereby from which he died.

The appellant filed a plea of the general issue, and gave notice thereunder that testimony would be offered to show that the deceased sustained the injuries complained of as a proximate result of his own negligence and that of Clark, the driver of the automobile. The issue was submitted to a jury, who rendered a verdict in favor of the appellees for ten thousand dollars, and the judgment of the court was rendered accordingly. A motion for a new trial was entered, but overruled by the court.

The theory of the appellees was that the appellant's train was being backed eastward over the said crossing, which the ordinance of the city of Jackson required to be guarded by a watchman at all times; that the engine of the train was pushing a "cut of cars;" that no watchman was maintained there at that time, nor did a watchman get off of and walk across ahead of the train when crossing; that the train was moving in the city of Jackson, in the manner detailed, at the rate of fifteen or twenty miles an hour, and gave no warning either by bell or whistle when crossing.

George Clark, the driver of the automobile, testified that he drove his automobile toward this crossing at a distance of some six or seven hundred feet, at a rate of speed estimated to be about fifteen or twenty miles an hour in plain view of the crossing. He stated that he did not hear the whistle of the train nor the ringing of its bell, and that he did not see or hear the train. On cross-examination, when asked if he was paying attention, he answered, "Not particularly," that a car about one hundred or two hundred feet ahead of him preceded him over the track going south. The witness Farmer, coming north on South State street on the other side of the railroad, met the car which preceded Clark, saw the train at a distance of about two hundred feet, and had to stop for the train to pass. He was positive that the train was being pushed eastward by an engine at the rear of the train, that its headlight faced westward, and that he saw no flagman at the crossing. He, with many others who were at the scene of the accident rendering aid to the occupants of the wrecked car, saw the headlight of the engine which was standing on the track near the tower just east of this street a few hundred feet, and that it was shining upon the scene. There is no contradiction of the fact that there was a street light near the railroad at this crossing. Nor is there contradiction that the railroad did not, in accordance with the requirements of the ordinance of the city of Jackson, maintain a watchman at this crossing.

The railroad, the appellant, sought to establish by its witnesses that the engine was drawing the train from the west to the east, and that the engine was headed east and in advance of the train; and with great particularity stated that a certain gondola car was struck on its side, the sill thereof being splintered thereby, and that there were glass and water on the car when it was delivered, a very short time after the accident, into the yards of the New Orleans & Great Northern Railroad; that this car left the Illinois Central yards in good order; that nothing happened save this accident to attract the attention of its employees; and that the car was next to the tender behind the engine, thereby according to appellant's evidence establishing the fact, as claimed by it, that the driver of the car recklessly drove it into the side of the train after the engine had crossed over, and at a time when the crossing was completely blocked by the ongoing train. It was shown that one Moore, a flagman of the appellant railroad, walked across the street, crossing in advance of the engine with his lantern, and after preceding the engine thus, he climbed back on it while the train was not moving at a greater rate of speed than five or six miles an hour. Photographs of the gondola car were introduced. There was much testimony to the effect that witnesses of the appellant railroad smelled the odor of whisky on Clark, the driver of the car, and Beasley, his companion, and likewise there was much evidence given to the contrary.

The accident occurred about midnight. The deceased, Beasley, was about nineteen years of age, in good health, and earning about twenty dollars a week at the time of the accident. Immediately after the accident, Beasley was carried to a hospital, but only lived six or seven hours afterwards, never regaining consciousness.

There was a contradiction of the testimony of the witness Farmer, in the form of a written statement given to a special agent of the appellant railroad, which appeared to have been erased in some particular, Farmer claiming that he did not make the statement written therein, and that the same showed erasures.

In connection with the giving of signals, there was only one witness who testified that they were not given, the driver, Clark; while, on the other hand, the railroad witnesses, Varnado, the engineer, Williams, the fireman, and Whitley, the engine foreman, testified positively that the whistle was blown and the bell was rung continuously until the train had passed over the crossing.

The court refused to grant a peremptory instruction requested by the appellant railroad company.

1. It is said that the court erred in refusing a peremptory instruction in this case, and counsel for the appellant in presenting the case contends most strongly for the railroad from the standpoint of its theory of the case,...