Yazoo & Mississippi Valley Railroad Company v. Wallace

• Decision Date: 08 April 1907
• Citation: 43 So. 469,90 Miss. 609
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. JOHN W. WALLACE
• Court: Mississippi Supreme Court

43 So. 469

90 Miss. 609

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. JOHN W. WALLACE

Supreme Court of Mississippi

April 8, 1907

March 1907

FROM the circuit court of Yazoo county, HON. DAVID M. MILLER Judge.

Wallace appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor, defendant appealed to the supreme court.

The plaintiff, Wallace, while in the discharge of his duty as a brakeman of the defendant railroad company, was riding upon the pilot of a gravel train, the engine of which, in the temporary absence of the engineer, was being operated by the fireman. The engine and train were approaching a railroad crossing which had been recently repaired, and, according to the evidence offered for the plaintiff, raised too high between the rails. Plaintiff, in order to give a signal to the fireman in charge of the engine, undertook to cross from one side of the pilot to the other, stepping upon a small V-shaped stepping board on the side of the pilot. While plaintiff was standing on this board, only four inches wide the engine reached the crossing, and plaintiff's foot was caught between the foot of the pilot and the road bed and he was thrown under the engine, and severely injured, losing both legs. Plaintiff sued the railroad company for $ 50,000 because of his injuries, charging that the engine was negligently left in the charge of the fireman, that the road bed was defective, the pilot improperly constructed and the end of the pilot too low; all of which defects were proximate causes of the injury. The defendant's demurrer to the declaration was overruled.

The jury returned a verdict in favor of the plaintiff for the sum of $ 50,000, the full amount demanded and from a judgment based thereon, the railroad company appealed to the supreme court.

On overruling the defendant's motion for a new trial the presiding judge stated that the verdict of the jury was probably too large to stand, but that under Code 1906, § 4910, the circuit court had no power to interfere with the amount of the verdict.

Reversed and remanded.

Mayes & Longstreet; C. L. Sivley, and C. N. Burch, for appellant.

We submit, first, that the court erred in overruling the demurrer to the declaration.

This declaration clearly fell within the rule established by this court in the case of Railroad Company v. Abrams, 84 Miss. 456, 36 So. 542, where it was declared that a declaration with but one count, and embracing two wholly independent grounds of liability is indefensible. The declaration here is a long one. An analysis will show that the liability by the whole declaration is placed on various grounds, each independent of the other, and each, if established by the evidence, sufficient to make the company liable without regard to the other; and some of these grounds are of common law obligation, while others derive their force from the constitution and its subsequent legislation.

The declaration, in fact, places the liability, all in one count, on the following grounds:

1. Because the road bed, especially at the crossing, was defectively constructed in two different particulars: one being the improper elevation of the surface between the rails, the other being a low joint (and in the evidence, plaintiff pet the responsibility for this on Maynor, the supervisor).

2. Because of a defective appliance; being the sagging pilot.

3. Because of a defective appliance; being the bad air brake.

4. Because the conductor abandoned his train, leaving it to be run by an incompetent fireman, about whose competency he had not informed himself.

5. Because the engineer abandoned his train, leaving the same to be run by an incompetent fireman.

6. Because the company, acting through its conductor as its representative, put its train into the hands of an incompetent fireman, without informing itself as to his competency.

We, therefore, insist that under the rule expounded in the Abrams case, the demurrer to the declaration should have been sustained. The averments of the declaration are to be construed in this connection, most strongly against the plaintiff. See Railway Co. v. Burnell, 36 South, 380, cited and followed in the Abrams case, supra.

The court below should have set aside or have reduced the verdict, because it was excessive, and oppressive; and to such an extent as to show prejudice and passion in the jury; the verdict being "for the full amount claimed, $ 50,000."

The bill of exceptions shows that the presiding judge said that the verdict of the jury was large and doubtless too large to stand, but the said presiding judge considered that under § 4910 of the Code of 1906 he had no power to interfere with the verdict, and overruled the motion for a new trial.

This statement in the bills of exceptions, duly signed by the presiding judge, clearly means that he was prevented from reducing the verdict by sec. 4910. It can mean nothing else.

We are, therefore, confronted by a question of the constitutionality of that section, which takes away from the circuit court the power of ordering a remittitur. We submit that the section violates both sec. 14 and sec. 31 of the Mississippi constitution, also secs. 144 and 156; and also amendment fourteen of the constitution of the United States which forbids any state to deprive any person of property without due process of law.

It will be observed that the prohibition of this section is universal. It says "the circuit court shall not in any case have the authority, etc."

It applies to suits on contracts, as well as to actions ex delicto, and even to actions for statutory penalties.

It applies to suits for liquidated and fixed amounts, as well as to those for unliquidated damages.

It applies to verdicts rendered, even when there may be no evidence whatever to sustain the amount found, and is not limited to cases in which there is difference in the evidence.

It is one- sided and unequal, since it does not equally prohibit the court from setting aside a verdict because it is too low; thus giving all the protection to the plaintiff and none to the defendant.

It, therefore, plainly invades both the constitutional power of the judiciary and the constitutional rights of the citizen.

It is an invasion of the right of trial by jury.

"'Trial by Jury,' in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by jury of twelve men before an officer vested with authority to cause them to be summoned and impaneled to administer oaths to them and to the constable in charge, and to enter judgment and to issue execution on their verdict but it is a trial by a jury of twelve men in the presence and under the superintendence of a judge empowered to instruct them on the facts and (except on acquittal of a criminal charge) to set aside their verdict if, in his opinion, it is against the law or the evidence." Capital Traction Co. v....