Yazoo & Mississippi Valley Railroad Company v. Carroll

Decision Date17 February 1913
Citation103 Miss. 830,60 So. 1013
PartiesYAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. BETSY CARROLL et al
CourtMississippi Supreme Court

October 1912

APPEAL from the circuit court of Claiborne county, HON. H. C MOUNGER, Judge.

Suit by Betsy Carroll and others against the Yazoo & Mississippi Valley Railroad Company. From a judgment for the plaintiff defendant appeals.

This is a suit by the parents of John Carroll, a negro boy, seventeen years of age, for damages suffered by reason of the death of their said son, due to the alleged negligence of the defendant railway company of which he was an employee working under the supervision of a foreman on a grading train. According to the testimony for plaintiff, at the time of the accident, said John Carroll was climbing upon a flat car for the purpose of placing sideboards to hold dirt when loaded. While climbing onto the car, as directed by the foreman, a switch engine pushing a number of cars ran into the string of cars to which said flat car was attached, with such force that it knocked him off the ladder and under the car, which passed over his leg and crushed it so that he died within a few hours. Plaintiff contends that the engine gave no warning either by whistle or bell or by signal of any kind, and that its approach was not observed or known by deceased, and that the collision was very violent and due to the negligent handling of the switch engine. Deceased was earning one dollar and twenty-five cents per day at the time of his death. The defendant introduced testimony tending to show that the deceased was lying down in the shade under the car at the time he was run over. Upon this sharp conflict in the evidence, the case was submitted to a jury and an instruction upon comparative negligence was given the jury at the request of plaintiff. The statute on comparative negligence is as follows (chapter 135, Laws 1910): "In all actions hereafter brought for personal injuries or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured. All questions of negligence and contributory negligence shall be for the jury to determine." Defendant requested the granting of the instruction set out in the opinion, which was refused by the court, and the refusal of this instruction is assigned as error. The jury returned a verdict for two thousand dollars and the railway company appealed.

Affirmed.

Mayes & Mayes, attorneys for appellant.

There are various points of error which might be pressed in this case, but we shall press only one; and this for the reason that it is the most sufficient and adequate cause for reversal.

The court erred in refusing to give the 13th instruction for the defense which is as follows:

"The court further instructs the jury for the defendant that if they believe from the evidence that John Carroll was under the car at the time of the accident and that he had no duties calling him there, that in such event they shall find for the defendant unless they believe from the evidence that defendant was guilty of gross negligence."

We take it that this instruction was refused by the court below on the idea that it ran counter to the statute of 1910 which abolishes the doctrine of contributory negligence as a complete defense.

But the point which we desire to make is that while that statute does abolish contributory negligence as a complete defense, it does not abolish as a defense that character of contributory negligence which is gross. If the contributory negligence is gross, then the act of 1910 does not apply, we submit, and that question was reviewed by this court in the decision of Natchez & Southern R. R. Co. v. Crawford, 99 Miss. 697, l. c. 718.

It is this question which we desire to present. We were entitled to have submitted to the jury the proposition that the defendant was entitled to a verdict, if the party killed was guilty of such negligence that the court itself could characterize it as gross. The instruction was based on the evidence of three witnesses for the railroad company as follows: 1. On the testimony of Will Myers, who stated that the boy was killed by getting...

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12 cases
  • Alabama Great Southern Ry. Co. v. Daniell
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1914
    ...R. R. Co. v. Cole, 101 Miss. 173; Easley v. A. G. S. R. R. Co., 96 Miss. 396; Natchez & Company v. Crawford, 99 Miss. 697; Railroad Company v. Carroll, 102 Miss. 830; Mississippi Central Railroad Company v. Robinson, So. 838; A. & V. R. R. Co. v. Thornhill, 63 So. 674; Bedford v. L. N. O. &......
  • Edward Hines Yellow Pine Trustees v. Holley
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    • United States State Supreme Court of Mississippi
    • February 1, 1926
    ...... walking on railroad held, in action for his injury,. sufficient to ... Mississippi Southern Railroad, which is owned and operated ......
  • Robinson v. Haydel
    • United States
    • United States State Supreme Court of Mississippi
    • December 7, 1936
    ...... 511, Code of 1930; Y. & M. V. R. R. v. Carroll, 103. Miss. 830; Miss. Central R. R. v. ...Native Lbr. Co., 117. Miss. 602; Railroad Co. v. Lindsey, 120 C. C. A. 166; Seafood Co. v. ......
  • Yazoo & M. V. R. Co. v. Cox
    • United States
    • United States State Supreme Court of Mississippi
    • July 2, 1923
    ...... person is struck and injured by a locomotive of a railroad. company in front of the depot in a municipality, and not ... by S. C. Cox against the Yazoo & Mississippi Valley Railroad. Company. From a judgment for plaintiff, ... Crawford, 99 Miss. 697; Railroad Company v. Carroll, 103 Miss. 830; Davis, D. G. of R. R. v. Elzey, 126 Miss. ......
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