Summary
In Teche Lines, Inc., v. pope, 175 Miss. 393, 166 So. 539, 540, the Court said: "It is the firmly established law in this state that punitive damages are recoverable not only for willful and intentional wrong, but for such gross and reckless negligence as is, in the eyes of the law, the equivalent of willful wrong.
Summary of this case from Planters Wholesale Grocery v. KincadeOpinion
No. 32167.
March 23, 1936. Suggestion of Error Overruled, April 20, 1936.
1. CARRIERS.
Bus passenger held entitled, as matter of law, to recover against bus company for injuries sustained in crossing collision, where driver made no attempt to stop bus which was traveling about twenty-five miles per hour within less than ten feet of crossing (Code 1930, section 6124).
2. DAMAGES.
Punitive damages are recoverable not only for willful and intentional wrong, but also for gross and reckless negligence.
3. CARRIERS. Bus driver, who made no attempt to stop bus until within less than ten feet of railroad crossing, held "grossly negligent," entitling passenger injured in collision with train to punitive damages ( Code 1930, section 6124).
"Gross negligence" is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them.
4. DAMAGES.
Amount of punitive damages is solely within jury's discretion.
5. CARRIERS.
Fifteen thousand dollars for injuries to bus passenger in crossing collision held not excessive, where verdict included punitive damages (Code 1930, section 6124).
6. APPEAL AND ERROR.
Where bus passenger sued bus company and railroad for injuries sustained in crossing collision, passenger and not bus company held entitled to complain of alleged error in granting peremptory instruction for railroad company.
7. APPEAL AND ERROR.
In bus passenger's action for injuries received in crossing collision, directing verdict for railroad company held not prejudicial to bus company, since joint tort-feasors are equally liable, and there can be no contribution between them (Code 1930, section 6124).
APPEAL from circuit court of Jackson county. HON.W.A. WHITE, Judge.
Porteous, Johnson Humphreys, of New Orleans, La., and White Morse, of Gulfport, for appellant.
If this were a suit between the driver of the bus, or the owner of the bus, and the railway, and the railway should plead section 6124, Code of 1930 (Stop Statute), then it would be a question for the jury as to whether failure to stop was the sole or proximate cause.
G. S.I. v. Saucier, 139 Miss. 497; N.O. N.E.R. Co. v. Hegwood, 155 Miss. 104.
This statute does not help appellee, as against appellant. The same statute provides the prima facie statute applies. This alone shows the case should have gone to the jury as to the railway, i.e., whether its locomotive blocking the highway under the unusual conditions, was the sole or proximate cause of the accident, resulting in injury to appellee.
The court, of course, is familiar with the bell or whistle statute, section 6125, Code of 1930. While appellee was suing the railway, note please that appellee made every effort to prove the bell was ringing. She sought to show the engine was lighted. The attorneys for the railway company took no part in the case except to move for a peremptory.
There was a total failure to prove the bus driver violated sections 5569 or 5571, Code of 1930, or any other statute.
As to whether it was negligence or not for the railway to block the crossing, we state the books are full of cases on this subject, but we need only look to our own court.
G.M. N.R.R. Co. v. Holifield, 152 Miss. 674; G.M. N.R. Co. v. Kennard, 164 Miss. 380; Spillman v. G. S.I.R.R. Co., 163 So. 445.
All these cases recognize the rule it is not negligence to block the crossing for a reasonably necessary time, in the absence of "peculiar environment" meaning peculiar conditions of hazard, which reasonable prudence should have reasonably foreseen would likely lead to collision, notwithstanding ordinary care on part of driver of motor car approaching crossing. Can it be doubted that the record shows without conflict there were peculiar and most unusual conditions.
Under no circumstances could the appellant be punished in this case. The driver was doing all he could under trying circumstances. The declaration, we respectfully submit, with deference and great respect for learned counsel opposing us, is not broad enough to warrant it. The strongest allegation is that the act of the driver was negligent, reckless and unlawful. There is no allegation of wilfullness or a gross and careless disregard for the rights of appellee; without pleading, proof is impotent. But when we come to the proof we find the utmost care, careful handling of the bus.
Punitive damages are punishing damages.
Neal v. Newburger, 154 Miss. 691.
There must be malice, fraud, oppression, wilful wrong, or gross negligence.
Y. M.V.R.R. v. Mullen, 158 Miss. 774.
Unless there is a showing of wilfulness, oppression or wilful disregard of rights, an instruction on punitive damages should not be given.
Telephone Co. v. Allen, 89 Miss. 837; Telephone Co. v. Baker, 85 Miss. 486; R.R. v. Marlett, 78 Miss. 872; So. R.R. v. Kendrick, 40 Miss. 374; R.R. v. Whitfield, 44 Miss. 466; R.R. v. Statham, 42 Miss. 607; Y. M.V.R.R. v. May, 104 Miss. 422; R.R. v. Williams, 87 Miss. 344; Telephone Co. v. Teague, 117 Miss. 401; Y. M.V.R.R. v. Hardie, 55 So. 967; City of Biloxi v. Maloney, 74 Miss. 738; R.R. Co. v. Scurr, 59 Miss. 465; I.C.R.R. v. Dodds, 53 So. 409; McDonald v. Moore, 159 Miss. 326; Bounds v. Watts, 159 Miss. 307.
The verdict is excessive.
Carver v. City of Jackson, 82 Miss. 583; R.R. v. Wallace, 91 Miss. 492; Pullman Co. v. Anderson, 119 Miss. 791; Payne v. McNeely, 123 Miss. 248; Woolworth v. Volking, 135 Miss. 410; Teche Co. v. Bateman, 162 Miss. 404; Cotton Mills v. Oliver, 153 Miss. 362; Y. M.V.R.R. v. Daily, 157 Miss. 3; N.O. N.E.R.R. v. Jackson, 145 Miss. 702; Shell Petroleum Co. v. Kennedy, 167 Miss. 305; Allen v. Friedman, 156 Miss. 77; Kress v. Sharp, 156 Miss. 693.
On the question of intervening cause, and also cases where the highway was blocked, see the very recent cases of Richmond v. Superior Oil Co., 172 Miss. 407; Public Service Co. v. Watts, 168 Miss. 235; Soloman v. Continental Baking Co., 172 Miss. 391.
Eaton Eaton, of Gulfport, for appellee.
A carrier of passengers owes the duty of exercising the highest degree of care and diligence.
Y. M.V.R.R. Co. v. Hawkins, 163 Miss. 505, 140 So. 873; L. N.R.R. Co. v. Compiretto, 137 Miss. 766, 102 So. 837.
A driver has no right to assume that the road is clear but must under all circumstances and at all times have vigilance and must anticipate and expect the presence of others.
Flynt v. Fondren, 122 Miss. 248, 84 So. 188; section 5571, Code of 1930.
If the conditions complained of by appellant were unusual, they did nothing more than impose on the driver a higher degree of care. They did not relieve him of the duty of operating the bus so that he could stop within the range of his lights.
Frazier v. Hull, 157 Miss. 303, 127 So. 775.
A person injured by the negligence of another is not required to submit to a serious major surgical operation for the correction of an otherwise permanent injury if such operation might not be successful and might possibly result in death.
Liberty Life Assurance Society v. Downs, 112 So. 485; 11 A.L.R. 230; 17 C.J. 779.
It was proper to allow punitive damages if the jury found that the defendant operated its car at a dangerous, reckless and unlawful rate of speed.
Galtney v. Wood, 149 Miss. 56, 115 So. 117.
The rule in this state is well settled that the imposition of punitive damages is a matter within the discretion of the jury. The jury may or may not award exemplary damages where the evidence justifies such infliction.
Southeastern Express Co. v. Thompson, 139 Miss. 344, 104 So. 80; I.C.R.R. Co. v. Cole, 113 Miss. 896, 74 So. 766; Virginia Beach Bus Line v. Campbell, 73 F.2d 97; Godfrey v. Meridian Light Ry. Co., 101 Miss. 565, 58 So. 543; Bradford v. Taylor, 85 Miss. 409, 37 So. 812.
Since the appellee was wholly innocent of any negligence and since under the trial court's point of view the railroad company was guilty of no negligence, it would have been highly improper to say to the jury that the presence of the locomotive on the track could have constituted a proximate cause which would shield appellant from liability.
Spillman v. G. S.I.R.R. Co., 163 So. 445; G.M. N.R.R. Co. v. Kennard, 164 Miss. 330, 145 So. 110; G.M. N.R.R. Co. v. Holifield, 162 Miss. 674, 120 So. 750.
The judgment in our opinion is smaller than it should have been and instead of being excessive is inadequate.
Masonite Corp. v. Lockridge, 163 Miss. 364, 140 So. 223; Miss. Ice Utilities Co. v. Pearce, 161 Miss. 252, 134 So. 164; St. Louis-San Francisco Ry. v. Bridges, 131 So. 99, 159 Miss. 268; Pan-American Petroleum Corp. v. Pate, 138 So. 349, 162 Miss. 638; S.H. Kress Co. v. Sharp, 126 So. 650, 156 Miss. 693, 131 So. 412, 159 Miss. 283; Y. M.V.R. Co. v. Daily, 157 Miss. 3, 127 So. 575; Cotton Mill Products Co. v. Oliver, 121 So. 111, 153 Miss. 362; I.C.R. Co. v. Williams, 110 So. 510, 144 Miss. 804; N.O. N.E.R. Co. v. Jackson, 110 So. 586, 145 Miss. 702; Yazoo City v. Loggins, 110 So. 833, 145 Miss. 793; St. Louis S.F. Ry. v. Hays, 101 So. 548, 136 Miss. 701; A. V. Ry. v. Dennis, 91 So. 4, 128 Miss. 298; Miss. Cent. R. Co. v. Lott, 80 So. 277, 118 Miss. 816; Y. M.V.R. v. Dees, 83 So. 613, 121 Miss. 439.
Argued orally by Walter A. White and Carter F. Johnson, Jr., for appellant, and by B.E. Eaton, Sr., for appellee.
Appellant is a common carrier of passengers by bus, and, among others, operates a line along the coast upon what is known as highway No. 90. At a community in Jackson county known as Kreole, this highway crosses the railroad tracks of the Mississippi Export Railroad Company. About four forty-five o'clock on the morning of July 25, 1935, a passenger bus of appellant was traveling eastwardly at the point mentioned, the bus being driven by one Berwick. The vehicle was about thirty feet long, weighed approximately ten tons, and had a seating capacity of thirty-nine passengers. A torrential rain was falling so that the bus driver could not see further than about sixty feet ahead. Nevertheless, when the driver reached the right of way of the railroad, and approached the railroad grade crossing, he was proceeding at the rate of twenty-five miles an hour and did not stop or slow down, and made no effort to do so until within less than ten feet of a locomotive of the railroad company, which happened at the moment to be in the occupancy of the crossing. The result was a disastrous collision, and a serious and permanent injury to appellee who was a passenger on the bus.
The above facts are substantially undisputed, so that applying section 6124, Code 1930, the plaintiff, appellee, was entitled to a peremptory instruction. That statute, so far as applicable to this and similar cases, reads as follows: "It shall be unlawful for any person to drive or propel any automobile or automobile truck or other motor driven vehicle upon any railroad track at a public highway or municipal street intersecting such railroad at grade crossing without first stopping at a distance of not less than ten feet nor more than fifty feet from the nearest track and looking for train; provided, however, that this shall not apply to automobiles or other motor driven vehicles of any municipality, when responding to any alarm of fire, nor to the automobiles or other motor driven vehicles of the police department when responding to any emergency call, nor to motor driven ambulances when responding to an emergency call, and it shall not apply where crossings are provided with flagmen and a signal to proceed has been given by the flagman, or where gates are provided and the gates open." This statute is plain and unambiguous in its terms, carries its own exceptions, and we shall enforce it as written. Had it been obeyed in this case, the injury would not have happened.
Appellee obtained an instruction permitting punitive damages, the instruction reading as follows: "The court charges the jury for plaintiff that if from a preponderance of the evidence you believe that the driver of the bus was guilty of gross negligence, that is, of such negligence as evidenced a reckless disregard for the safety of passengers, then in addition to actual damages for injuries which plaintiff may have sustained as the proximate result thereof, you may, in your discretion, award exemplary or punitive damages."
It is the firmly established law in this state that punitive damages are recoverable not only for willful and intentional wrong, but for such gross and reckless negligence as is, in the eyes of the law, the equivalent of willful wrong. Godfrey v. Meridian Light Ry. Co., 101 Miss. 565, 568, 58 So. 534. There is no precise definition of gross negligence, but one of the approximate definitions may be thus expressed: Gross negligence is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them. The facts of this case, as the statement thereof reveals, bring it well within that definition and principle. Compare Wilson v. State, 173 Miss. 372, 161 So. 744, wherein we affirmed a manslaughter conviction, as for culpable negligence, upon a state of facts in which the negligence was no more culpable than in the case now before us.
The verdict was for fifteen thousand dollars. This is a larger amount than any one of us would have voted for had we been on the jury. But, as we have often heretofore said, that is not the test. The state of the record is such that had there been no allowance of punitory damages and the verdict had been for half the stated amount as compensatory damages, we would not be authorized to interfere. Assuming, therefore, that half, or even more than half, the amount of the verdict represents a punitory award, we are still not authorized to interfere. We call attention to Yazoo M.V.R. Co. v. Williams, 87 Miss. 344, 355, 39 So. 489, 491, wherein it was said: "It is the long settled and uniformly adhered to rule in our jurisprudence that the amount of such punitory or exemplary damages is solely within the discretion of the jury, and, no matter what the sum of their finding might be, interference therewith, unless for exceptional causes, is discouraged . . . the reason being that, as the jury are the sole judges of the amount which ought properly to be assessed in order to inflict adequate punishment, the courts should scrupulously avoid any undue interference with their prerogative."
Of couse, it was not meant by the broad language above quoted that as to punitory damages the courts are not required to exercise a supervisory power over such verdicts in the manner as they are in regard to compensatory verdicts. Beard v. Williams, 172 Miss. 880, 884, 161 So. 750; nor in reaffirming that language do we mean to withdraw in any measure from the constitutional duties of supervision imposed upon us. We must keep all verdicts within the bounds of reason, measured according to legal standards, both in the matter of the evidence upon which the verdict is based and in the amount of the verdict; but to bring the force of this supervisory power into operation, particularly as to punitory verdicts, the amount allowed must be clearly beyond reason, all things properly before the jury calmly considered. We cannot say that upon the facts of this case the amount allowed is beyond all calm reason, and we therefore cannot interfere.
The railroad company was made a joint defendant and the greater part of the argument of appellant is directed at the alleged error of the trial court in granting a peremptory instruction in behalf of the railroad company. If there were any error in that respect, the plaintiff, appellee, only would be entitled to complain of it. Even if the railroad company were liable, it would be as a joint tort-feasor, and it is firmly settled in this state that joint tortfeasors are equally liable and that there is no apportionment or contribution between them. Mississippi Cent. R. Co. v. Roberts, 173 Miss. 487, 505, 160 So. 604.
Affirmed.