Opinion
No. 33204.
May 16, 1938.
1. MASTER AND SERVANT.
In flagman's action against railroad for injuries allegedly sustained when express truck struck flagman while he was riding on express car, evidence as to whether any such accident occurred supported verdict for railroad.
2. APPEAL AND ERROR.
Plaintiff could not complain of instructions given on defendant's request on ground that they permitted departure from the law of the case, where plaintiff obtained instructions which not only permitted departure from the law of the case, but departure from any and all law.
3. APPEAL AND ERROR.
A judgment will not be reversed for error in appellee's instruction when those given for appellant are subject to criticism on the same ground.
APPEAL from the circuit court of Harrison county. HON.W.A. WHITE, Judge.
Mize, Thompson Mize, and Carl Marshall, all of Gulfport, for appellant.
Instruction A granted for the appellee is especially offensive against the law; as it tells the jury to find for the appellee as the sole proximate cause of the appellant's injury was the backing of the express truck, the instruction deliberately omitting reference to any question of negligence of either the appellee or the express company. We are at a loss to conceive of the way in which an instruction could be more glaringly defective and misleading on a vitally important phase of the cause, precluded from discussion on the former appeal.
D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415.
The appellant assigns as error the action of the trial court in granting Instruction No. 9 at the request of the appellee.
The granting of an instruction that singles out for comment, gives conspicuity to, and the judicial slant upon any special evidence in the case, and is argumentative, constitutes reversible error.
Odeneal v. Henry, 70 Miss. 172, 12 So. 154; Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; Gurley v. Tucker, 170 Miss. 565, 155 So. 189; Mohead v. Gilmer Grocery Co., 153 Miss. 467, 121 So. 143; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415.
The appellant respectfully assigns as error committed to his prejudice in the trial below, the trial court's granting instruction No. 10 at the instance of the appellee.
There was no issue of fact in the case to whether the Federal Employers' Liability Act applied, or some statute of the state, or some rule of the common law; and this instruction, in singling out and directing the jury's attention to the Federal Employers' Liability Act, had no applicability to any issue presented in the case with which the jury was at all concerned. It was grossly misleading and unfair.
Stokes v. Adams-Newel Lbr. Co., 151 Miss. 711, 118 So. 441; Fairfield v. L. N.R.R. Co., 94 Miss. 887, 48 So. 513.
The appellant most earnestly submits that the Instruction No. 15 granted at the instance of the appellee in the trial below was wholly erroneous, and most gravely prejudicial to the appellant's cause. As the court will observe, this instruction sought to inject the issue of contributory negligence into the cause; and furnished the jury with a statement of the law of contributory negligence that in any case was erroneous in the most important particular.
The appellant submits to the court that error to his prejudice was committed by the learned trial court in declining to permit the appellant to testify that he immediately reported the occurrence of the accident and injury to the conductor in charge of the train in question, and was asked by the conductor if he wished to go to the hospital, and replied that he did not, but that if he did not feel better in the morning he would not go out on the three o'clock train.
Over and against the earnest objection, protest, and entreaty of appellant's counsel, the trial court declined to permit them to cross-question this conductor in the presence of the jury at all as to whether during any day in August, 1933, the appellant reported the accident and injury to him; appellant's counsel dictating into the record a statement to the effect that only one accident and injury had occurred to the appellant and been reported to the witness, and the appellant was prepared to prove that the accident and injury that the witness said were reported to him on August fourth were in fact reported on August 24, when they occurred. But the court for some reason declined to permit the conductor to be questioned as to a report on any date except August 24, 1933, when the appellant said that the accident occurred.
We submit that this was a clearly erroneous deprivation of the appellant's right of cross-examination; and a more serious and prejudicial error could scarcely be imagined in the circumstances.
Miss. Ice Utilities Co. v. Pearce, 134 So. 164.
And in the same attitude was the learned trial court's arbitrary (we use the term with respect and deference) refusal to permit appellant's counsel to cross-examine Dr. Werlein, introduced by the appellee as a professional witness, expert on cataract.
Griffith v. Los Angeles Pac. Co., 111 P. 107; Tompkins v. West, 16 A. 237; Connecticut Mut. Life Ins. Co. v. Ellis, 89 Ill. 513.
Smith Johnston, of Mobile, Ala., for appellee.
It is fundamental that there can be no liability on the part of the defendant unless the defendant was guilty of some negligence that constituted a proximate cause of the injury. The jury cannot speculate as to this, but there must be positive and definite proof. It is just as important that the negligence be a proximate cause of the injury as it is that there be negligence.
Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 33; Atchison, Topeka S.F. Ry. v. Toops, 281 U.S. 351; New York Central R. Co. v. Ambrose, 280 U.S. 486; Delaware, Lackawanna Western R. Co. v. Koske, 279 U.S. 7; Toledo, St. Louis Western R. Co. v. Allen, 276 U.S. 165.
Proof of negligence is not sufficient without positive proof that it constitutes the proximate cause.
New York Central R.R. Co. v. Ambrose, 280 U.S. 486; Bufkin v. Louisville Nashville R. Co., 137 So. 517; Louisville Nashville R. Co. v. Daniels, 99 So. 434, 135 Miss. 33.
Under the instructions given at the request of the plaintiff if the injury was the proximate result of any negligence of the defendant the jury was to find for the plaintiff, and under these instructions if the injury was the sole proximate result of the act of someone else, which would necessarily exclude any negligence on the part of the defendant as being a proximate cause, the jury was instructed to find for the defendant. The result of these instructions is that the jury was given a great deal more leeway to find for the plaintiff than the law allows.
Under the federal rule a man is not permitted to testify to an absurdity and obtain a judgment based on such.
Pennsylvania R.R. Co. v. Chamberlain, 288 U.S. 333; Favre v. Louisville Nashville R.R. Co., 180 Miss. 843.
Where the verdict is for the defendant, an instruction as to the measure of damages, or the extent of damages, is without injury, even if erroneous.
Stamps v. Polk, 108 So. 729, 143 Miss. 551; Crenshaw v. Seaboard Air Line R. Co., 121 So. 736; Roll v. Dockery, 122 So. 630; Kern v. Friedrich, 126 So. 857; M. O.R. Co. v. Campbell, 75 So. 554, 114 Miss. 803; Bradford v. Taylor, 37 So. 812, 85 Miss. 409; Moore v. Johnson, 114 So. 734, 148 Miss. 827.
The statement of the law in Instruction No. 9, however, is based upon decisions of the courts that hold that where a matter is strictly a question for expert knowledge, the finding of the jury must be supported by the testimony of an expert, and cannot be based upon speculation, or the opinion of a layman.
U.S. v. Clapp, 63 F.2d 793; U.S. v. Wilfore, 66 F.2d 255; Hartford Acc. Ind. Co. v. Industrial Acc. Com., 35 P.2d 366.
A jury is never allowed to speculate, and base a verdict thereon.
Pennsylvania R.R. v. Chamberlain, 288 U.S. 333; Northwestern Pacific R.R. v. Bobo, 290 U.S. 499, 78 L.Ed. 462.
Instruction No. 10 merely tells the jury that they can not speculate, but their findings must be based upon the evidence. The appellant does not deny that this is the law, but seems to object to the jury having been told that it was the law. This charge is exactly in accordance with the holding of the Supreme Court of the United States as well as every court in the land.
Pennsylvania R.R. v. Chamberlain, 288 U.S. 333; Atchison, T. S.F. Ry. v. Toops, 281 U.S. 351; New York Central R.R. v. Ambrose, 280 U.S. 486.
The following Mississippi cases clearly substantiate the proposition that the statements of an employee in regard to an accident made a short time thereafter are not binding upon the employer.
Y. M.V.R.R. Co. v. McGowan, 62 Miss. 682; Simms v. Forbes, 38 So. 546, 86 Miss. 412; G.M. N.R.R. Co. v. Hudson, 107 So. 369, 142 Miss. 542; Woods v. Franklin, 118 So. 450, 151 Miss. 635; Deposit Guaranty Bank Trust Co. v. Silver Saver Stores, 148 So. 367, 166 Miss. 882.
It is respectfully submitted that there were no erroneous instructions in this case; that the instructions given at the request of the defendant, standing alone, set forth correct principles of law; that these instructions, however, should be construed with those given at the request of the plaintiff (City of Hattiesburg v. Beverly, 86 So. 590, 123 Miss. 759), and when construed with instructions given at the request of the plaintiff are even more favorable to the plaintiff than the plaintiff was entitled to.
Argued orally by Robt. W. Thompson, Jr., for appellant, and by Harry H. Smith, for appellee.
On the first appearance of this case at the bar of the trial court it was dismissed on demurrer; but, on appeal, we were of the opinion that the third count of the declaration was sufficient to take the case to the jury, and the judgment was reversed and the cause remanded. Ross v. Louisville N.R. Co., 178 Miss. 69, 172 So. 752.
It will be seen from the cited opinion that, according to the allegations of the declaration, the asserted personal injury was caused by a collision of plaintiff, a flagman, riding on the rear outside of an express car, with an express truck, the said truck having been present and the collision therewith having occurred as the result of a dangerous system of operations by the express company and the railroad company as joint actors, and after promises and assurance by the railroad company of a discontinuance thereof.
On the trial on the merits three of the five witnesses, present at the time and place, testified that no such collision occurred — that no such injury happened. Plaintiff's corroborating witness was discredited on cross-examination to such an extent as perhaps to make his testimony hurtful rather than helpful to plaintiff's case, and plaintiff himself suffered seriously on the cross-examination. The record preponderates, therefore, in favor of the defendant railroad company that no such accident as alleged ever happened at all; or, to say the least of it, the verdict in favor of the defendant seems to be well supported by the evidence.
Appellant complains, however, that on the issue of liability the jury was misdirected, or rather was misled, by the three following instructions granted at the request of appellee, the defendant:
"A. The court instructs the jury that if you are reasonably satisfied from the evidence that the sole proximate cause of the plaintiff's injury, if he sustained one, was the express truck backing into him, then you should find a verdict for the defendant."
"B. The court instructs the jury that the Railroad Company is not in any way liable for the negligence of the employes of the express company."
"E. The court instructs the jury that if you believe that the plaintiff was injured by an express truck backing into him but that this was not due to any fault on the part of the railroad company or its employes you should find a verdict for the defendant."
The complaint of appellant against said instructions is that thereby the jury was authorized and invited to single out and act upon the isolated features, put forth by said three instructions, separate and apart from their pertinency as constituents of the combined and interconnected complete state of facts which went to fill up the law of the case in plaintiff's behalf, as declared in our former opinion. In other words, and more briefly, that they permitted a departure from the law of the case.
Had appellant on his part requested an instruction which informed the jury of the law of the case as laid down in our former opinion, the complaint which he now makes of defendant's said three instructions would perhaps have been well taken. But appellant himself obtained instructions which permitted and invited not only a departure from the law of the case, but permitted a departure from any and all law.
Appellant obtained two instructions, and only two, on the issue of liability, and omitting from them collateral features, not here material, these two instructions read as follows:
"If the jury believe from the evidence and the law as announced in the instructions of the Court, that the plaintiff was injured as a proximate result of negligence of the defendant railroad company, it is the duty of the jury to return a verdict for plaintiff."
What negligence is referred to in that instruction, particular attention being here again called to the fact that there were no other instructions by appellant on that subject? Is it the negligence charged in the declaration and of the factual character which the court held in its former opinion would be sufficient, if fully proved, to make out a case? If that state of case was not fully proved, or not satisfactorily proved, was it an invitation to the jury to find for plaintiff on some other theory of the facts which the jury might suppose to constitute negligence? What wider departure from the law of the case could be permitted or invited than by an instruction such as this which not only opens the field to any sort of negligence but as well to what the particular jury under its particular notions might deem to be negligence, although not such under the established law of the land?
It was upon the above-mentioned considerations that this court held such an instruction reversibly erroneous in McDonough Motor Express v. Spiers, 176 So. 723; but the point here is that the instruction not only permits but invites a departure from the law of the case, wherefore appellant is in no position to complain that appellee's instructions permit or invite such a departure. The rule is that a judgment will not be reversed for error in appellee's instructions when those given for appellant are subject to criticism on the same ground — embrace the same vice. 14 R.C.L., p. 815.
The other assignments have been examined and we find no reversible error.
Affirmed.