Yazoo & Mississippi Valley R. Co. v. Aultman

• Decision Date: 22 March 1937
• Docket Number: 32655
• Citation: 179 Miss. 109,173 So. 280
• Parties: YAZOO & MISSISSIPPI VALLEY R. Co. v. AULTMAN
• Court: Mississippi Supreme Court

173 So. 280

179 Miss. 109

YAZOO & MISSISSIPPI VALLEY R. Co. v. AULTMAN

No. 32655

Supreme Court of Mississippi

March 22, 1937

Division A

1 RAILROADS.

In guest's action against railroad for injuries sustained in collision between automobile and freight train, conflicting evidence as to whether railroad was negligent because of failure to give signals, failure to have stop sign comply with statute, and evidence as to whether automobile or train was being operated at an excessive speed held for jury.

2. TRIAL.

In guest's action for injuries sustained in collision between automobile and freight train, instruction with respect to contributory negligence of guest limiting but not precluding guest's recovery if railroad was negligent in specified particulars, "or was otherwise guilty of negligence on said occasion," was improper for announcing to jury that it could depart from proof.

3 TRIAL.

Trial court should confine case to precise issues therein in submitting case to jury.

4 RAILROADS.

In guest's action against railroad for injuries sustained in collision between automobile and train, instruction with respect to liability of railroad if train was being operated at speed exceeding six miles per hour in municipality held not erroneous on ground there was no evidence that crossing was within speed restricted district fixed by Railroad Commission.

5 RAILROADS.

Statute relating to liability of railroad if train is operated at speed exceeding six miles per hour in municipalities does not impose an absolute liability upon railroad where accident occurs while train is being operated at an excessive rate of speed, since speed must be proximate cause of the accident or a contributing proximate cause thereto (Code 1930, section 6130).

6. APPEAL AND ERROR. RAILROADS.

In guest's action against railroad for injuries sustained in collision between automobile and freight train, instruction with respect to liability of railroad if train was operated at speed exceeding six miles per hour in municipality, which omitted qualification that speed must be proximate cause of accident or contributing proximate cause thereto where railroad relied upon evidence that speed was not proximate cause of accident held prejudicial error (Code 1930, section 6130).

HON. R. E. BENNETT, Judge.

APPEAL from the circuit court of Adams county HON. R. E. BENNETT, Judge.

Action by Howard H. Aultman against the Yazoo & Mississippi Valley Railroad Company. Judgment for the plaintiff, and the defendant appeals. Reversed and remanded.

Reversed and remanded.

Ratcliff & Ratcliff, of Natchez, E. C. Craig, of Chicago, Ill., and Burch, Minor & McKay, of Memphis, Tenn., for appellant.

The verdict of the jury must rest on a finding that the engine and automobile collided on the crossing. If the facts are that the automobile ran into the side of the train, after the engine had passed and the train wholly occupied the crossing, there can be no liability under the well-settled rule in this state, regardless of the speed of the train, regardless of whether or not the statutory signals were sounded approaching the crossing, regardless of whether the stop sign complied with the statute, and regardless of whether a flagman was stationed at the crossing to warn vehicles on the highway that the crossing was wholly occupied by the train.

Spilman v. G. & S. I. R. R. Co., 173 Miss. 725, 163 So. 445; G. M. & N. R. R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; G. M. & N. R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Southern Ry. v. Lambert, 160 So. 262.

This court will set aside a verdict opposed to the overwhelming weight of the convincing evidence where trial judge has refused to do so.

Railroad v. Bennett, 127 Miss. 413, 90 So. 113; Railroad v. Holcomb, 105 So. 787; Railroad v. Buford, 150 Miss. 832, 116 So. 817; Railroad v. Johnson, 157 Miss. 266, 126 So. 827; Railroad v. Johnson, 141 So. 581; Teche Lines, Inc., v. Mason, 144 So. 383; Railroad v. Blaylock, 160 So. 373; Beard v. Williams, 172 Miss. 880, 161 So. 750; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3.

Most of the instructions given plaintiff contain positive error, are inaccurate, incomplete, contradictory, confusing and misleading.

Yazoo, etc., R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Spilman v. Gulf, etc., R. Co., 173 Miss. 725, 163 So. 445; Gulf, etc., R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Gulf, etc., R. Co. v. Holifield, 152 Miss. 674, 120 So. 750.

The court failed to tell the jury that the failure of defendant to comply with the bell and whistle statute (Code 1930, section 6125) would impose liability only if it was the proximate cause of the accident.

Marx v. Berry, 168 So. 61.

It is too plain for argument that the violation of the bell and whistle statute does not impose liability unless it is the proximate cause of the accident. This court has repeatedly so held.

Billingsley v. I. C. R. Co., 100 Miss. 612, 56 So. 790; Yazoo, etc., R. Co. v. Cox, 132 Miss. 564, 97 So. 7; Yazoo, etc., R. Co. v. Green, 167 Miss. 137, 147 So. 333; Spilman v. Gulf, etc., R. Co., 173 Miss. 725, 163 So. 445.

The giving of an instruction that has no substantial support in the evidence is prejudicial error and requires reversal.

Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; Western Union T. Co. v. Robertson, 109 Miss. 775, 69 So. 680; Owen v. Anderson, 119 Miss. 66, 80 So. 386; Lackey v. St. Louis, etc., R. Co., 102 Miss. 339, 59 So. 97.

It is clear that the giving of instructions 13 and 14 was error because there is no proof that the crossing is within the speed restricted district. Furthermore, these instructions omitted the element of proximate cause, and, clearly, unless the speed of the train was the proximate cause of the accident the violation of the speed statute would impose no liability. This court has repeatedly so held.

Louisville, etc., R. Co. v. Daniels, 135 Miss. 41; Brinkley v. So. R. Co., 113 Miss. 367, 74 So. 280; Miss., etc., R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Clisby v. Mobile, etc., R. Co., 78 Miss. 937, 29 So. 913; Alabama, etc., R. Co. v. Carter, 77 Miss. 511, 27 So. 993.

The erroneous instructions are not cured by correct instructions.

10 C. J. 1087, sec. 1474.

Nothing is better settled in this state than that incorrect instructions are not cured by correct instructions, and that a verdict resting on contradictory and misleading instructions will not be sustained.

Railroad v. Cornelius, 95 So. 90; Railroad v. Phillips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; Railroad v. McGowen, 92 Miss. 603; McNeil v. Bay Springs Bank, 100 Miss. 271; Soloman v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677; Louisville, etc., R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93; Yazoo, etc., R. Co. v. Hawkins, 159 Miss. 775, 132 So. 742; Columbus, etc., R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; New Orleans, etc., R. Co. v. Wheat, 172 Miss. 524, 160 So. 607; Russell v. Williams, 168 Miss. 181, 150 So. 528; Railroad Co. v. Trotter, 61 Miss. 417; Railroad v. Minor, 69 Miss. 722.

Engle & Laub, of Natchez, for appellee.

The verdict is not against the overwhelming weight of the convincing evidence but is wholly supported by the evidence.

All presumptions are in favor of the judgment.

Bates v. Strickland, 103 So. 432, 139 Miss. 636.

Where there is some conflict in the evidence the appellate court will accept the evidence of the successful party and determine from that whether or not the chancellor's decree must be upheld.

Biles v. Walker, 83 So. 411, 121 Miss. 98; Powell v. Tomlinson, 129 Miss. 354, 658, 92 So. 226, 583.

A verdict should only be set aside where it is manifest, from the evidence and surroundings, that it is not a fair and true verdict.

Shelton v. Underwood, 163 So. 828, 174 Miss. 169.

Plaintiff's instruction No. 4 reads as follows: "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence the defendant on the occasion of the injury was railroad company then the defendant in the case was required to have the locomotive run by it to be provided with a bell of at least thirty pounds weight, and a steam whistle which could be heard distinctly at a distance of three hundred yards, and was further required to cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway, and required to keep the bell ringing or the whistle blowing continuously until said crossing was passed, and if you believe from a preponderance of the evidence in this case that upon the occasion in question that the street or roadway crossing was a public highway crossing and the defendant then and there failed to give the statutory warning by failing to ring its bell or to sound its whistle as above set forth, then the defendant was guilty of negligence." We respectfully submit that the instruction is proper.

Smith v. Miss. Central R. R. Co., 173 Miss. 507, 154 So. 533; Section 6125, Code of 1930; Spilman v. G. & S. I. R. Co., 173 Miss. 725, 163 So. 445; Southern R. R. Co. v. Murray, 91 Miss. 546, 44 So. 785.

Plaintiff's instructions Nos. 8, 9 and 10 informed the jury that a failure to give warning must have contributed proximately to the injuries before recovery could be had.

It is not required in the practice, this court has on numerous occasions held, to embody all propositions in any one instruction. The instructions are to be taken and read as a whole. One instruction is but a chapter in a book and this court has used condemnatory language...