In Mississippi Central Railroad Co. v. Roberts, 173 Miss. 487, 160 So. 604 (1935), the jury returned two verdicts, one against the first defendant for $8,500 and the other against a second defendant for $1,000.Summary of this case from Monroe County Elec. Power Ass'n v. Pace
April 8, 1935. Suggestion of Error Overruled May 28, 1935.
1. APPEAL AND ERROR.
Before reviewing court can interfere with verdict, testimony must so strongly preponderate that court can safely say that it was overwhelming in favor of appellant.
2. APPEAL AND ERROR.
In action for death of school bus passenger in crossing collision, evidence whether required warning signals were given held not clearly overwhelming in favor of railroad so as to require reversal of judgment for plaintiffs.
In action for death of school bus passenger in crossing collision, evidence showed that bus driver was concurrently negligent in failing to see train, notwithstanding trainmen's alleged failure to give crossing signals.
Passenger is not chargeable with negligence of driver over whom passenger has no control, until passenger has become aware of such negligence and of probable danger thereof, and thereupon fails reasonably to remonstrate or to escape, if escape be safely or reasonably possible.
5. APPEAL AND ERROR.
In action for death of school bus passenger in crossing collision, instruction that passenger was not contributorily negligent, which assumed disputed fact issues, held not reversible error, where locomotive bell did not ring and other passengers did not hear whistle until locomotive was one hundred feet or less from crossing, and passenger could not see and would have had no time to remonstrate or escape.
6. CONTRIBUTION. Negligence.
When concurrent negligence produces single, indivisible injury, both tort-feasors are equally liable for entire damage, and in absence of statute there is no apportionment or contribution between them.
Statute authorizing separate verdicts as against several defendants is procedural statute only, and to receive several verdicts thereunder, substantive law must be such as to impose several separable and different respective liabilities (Code 1930, secs. 605, 606).
In action for death of school bus passenger in crossing collision, where jury returned two separate verdicts, one against railroad for eight thousand five hundred dollars and other against bus driver for one thousand dollars, returning verdicts to jury for further consideration, with directions that one verdict for entire sum be rendered, held proper (Code 1930, sec. 586).
9. APPEAL AND ERROR.
Judgment would not be reversed where errors were not so serious and prejudicially harmful as to have substantially affected result in case.
APPEAL from circuit court of Lamar county.
HON. HARVEY McGEHEE, Judge.
Action by T.T. Roberts and another against the Mississippi Central Railroad Company and another. From a judgment for plaintiffs, named defendant appeals. Affirmed.
Brady, Dean Hobbs, of Brookhaven, for appellants.
A bell gives "clangs" and a whistle gives "blasts," and there is an appreciable interval between the separate sounds in each case, the only difference being that there is practically a non-appreciable difference between the blasts and the clangs. It could not have been in the minds of the lawmakers that railroads were being required to depart from customary, common-sense practice and tie down the whistle cord on approaching a crossing, any more than that they were being required to equip their engines with a bell with enough clappers to give forth the continuous roll of a snare drum. It is evident that what they intended was to establish a definite distance and to require that within that distance there shall be no lapse in the warning by bell or whistle. In interpreting statutes this court has always applied the rule of reason, and the ascertainment and following of the spirit of the legislative intent, rather than the letter, or what would be foolish or hurtful.
Dunn v. Clinghan, 93 Miss. 310, 47 So. 503; Kennington v. Hemmingway, 101 Miss. 259, 57 So. 809; Prather v. Googe, 108 Miss. 670, 67 So. 156; Maris v. Lindsey, 124 Miss. 742, 87 So. 13; Gunter v. Jackson, 130 Miss. 637, 94 So. 844; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Huber v. Freret, 138 Miss. 238, 103 So. 3; Robertson v. Oil Co., 141 Miss. 356, 106 So. 449; Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 113 So. 522; Smith v. Chickasaw Co., 156 Miss. 171, 125 So. 96; Miers v. Miers, 160 Miss. 746, 133 So. 133; White v. Miller, 162 Miss. 296, 139 So. 611; Gandy v. Public Service Corporation, 163 Miss. 187, 140 So. 687; Gift v. Love, 164 Miss. 442, 144 So. 562; Leaf Hotel Corp. v. Hattiesburg, 168 Miss. 304, 150 So. 779; U.S. Steel Corp. v. Hodge, 64 N.J. Eq. 807, 820, 54 A. 1; Gourley v. Gourley, 16 R.I. 705, 19 A. 142; In re Schneider, 164 Fed. 335; U.S. Shipping Co. v. U.S., 146 Fed. 914, 920; Wood v. Sutcliffe, 8 Eng. Laws Eq. 217.
As a matter of fact, the break in the blast is worth infinitely more as warning than one continuous scream, which would result if any other interpretation of the statute were made.
One witness who hears the ringing of a bell is worth more than the testimony of a dozen witnesses who did not hear it unless in some manner their attention had been especially called to it.
The character of the negative testimony cannot prevail against the positive testimony of the host of credible witnesses that the bell did ring at the time in question.
Foley v. N.Y.C. H.R.R. Co., 197 N.Y. 430, 90 N.E. 1116, 18 Ann. Cas. 631; 10 R.C.L. 1011; 9 Encyc. Ev., pages 867, 868; 23 C.J. 42, 45; Jones on Evidence (3 Ed.), sec. 898; 2 Moore on Facts, 1188, 1189; 3 Elliott on Railroads (3 Ed.), pages 523, 524.
Independently of giving signals, and, only for the sake of argument, admitting that they may not have been given in strict compliance with the statute, appellant is still entitled to judgment here for the following reasons:
Because, assuming that there was a failure in complying with section 6125, Code of 1930, such failure did not proximately cause the accident, for two reasons: (1) the noises of and in the bus prevented the train signals from being heard, and negligence cannot be predicated on not doing a thing which would have been utterly useless, if done. (2) It is certain that when the driver of the school bus stopped and looked up the track, the train was in sight, that he attempted to beat it to the crossing to avoid being late, but miscalculated his speed.
Railroad Co. v. Kellam, 83 Va. 851, 3 S.E. 703; Perkins v. Railroad Co., 57 Hun. 586, 10 N.Y.S. 356; Siegel v. Railroad Co., 79 Wis. 404, 48 N.W. 488; Moore on Facts, sec. 148, page 193, sec. 153, page 198, sec. 135, page 200, and sec. 160, pages 204-6; Peters v. Ry. Co., 135 Ala. 533, 33 So. 332; Ry. Co. v. Williams, 137 S.W. 828; Railroad Co. v. Batsel, 140 S.W. 726; Zibbell v. So. Pac. Co., 160 Cal. 237, 116 P. 513; Westerkamp v. R.R. Co., 41 Colo. 290, 92 P. 687; Harten v. R.R. Co., 18 App. Cas. 260; Johnson v. R.R. Co., 61 Ill. App. 522; R.R. Co. v. Kirby, 86 Ill. App. 57; R.R. Co. v. Gallagher, 109 Ill. App. 67; Ry. Co. v. DeFrietas, 109 Ill. App. 104; R.R. Co. v. Vremeister, 112 Ill. App. 346; Ry. Co. v. Hirsch, 132 Ill. App. 656; R.R. Co. v. Fraze, 150 Ind. 576, 65 A.S.R. 377, 50 N.E. 576; Ry. Co. v. Baker, 104 S.W. 1182; Artz v. R.R. Co., 34 Ia. 153; Payne v. Railroad Co., 39 Ia. 523; Bloomfield v. Ry. Co., 74 Ia. 607, 38 N.W. 431; Young v. Ry. Co., 57 Kan. 134, 45 P. 583; Smith v. R.R. Co., 87 Me. 339, 32 A. 967; Blumenthal v. R.R. Co., 97 Me. 255, 54 A. 747; Day v. B. M.R.R., 97 Me. 528, 55 A. 420; McCarthy v. R.R. Co., 90 A. 490, 54 L.R.A. (N.S.) 140; N.C. Ry. Co. v. Medairy, 86 Md. 168, 37 A. 796, 3 Am. Neg. Rep. 411; Ry. Co. v. Beasley, 117 Md. 270, 83 A. 157; Carlson v. Ry. Co., 296 Minn. 504, 105 N.W. 555, 113 A.S.R. 655, 4 L.R.A. (N.S.) 349; State v. Dettner, 27 S.W. 1117; Hook v. Ry. Co., 162 Mo. 569, 63 S.W. 360; State v. Gurley, 70 S.W. 875; Barrie v. Co., 102 Mo. App. 87, 76 S.W. 706; Porter v. Ry. Co., 199 Mo. App. 82, 97 S.W. 880; Schaub v. Ry. Co., 133 Mo. App. 444, 113 S.W. 1163; Waggoner v. R.R. Co., 152 Mo. App. 173, 133 S.W. 68; Dolfini v. R.R. Co., 178 N.Y. 1, 70 N.E. 68; Fiddler v. R.R. Co., 64 App. Div. 95, 71 N.Y.S. 721; Madigan v. R.R. Co., 74 N Y Sup. 143, 68 App. Div. 123; Swart v. R.R. Co., 81 App. Div. 402, 80 N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1131; McKinley v. Ry. Co., 86 N.Y. Sup. 461, 91 App. Div. 153; Stapp v. Ry. Co., 29 N Y Sup. 1008, 80 Hun. 178; Belch v. R.R. Co., 36 N.Y. Sup. 56, 90 Hun. 477; Montenes v. Ry. Co., 78 N.Y. Sup. 1059, 77 App. Div. 493; Golden v. Ry. Co., 98 N.Y. Sup. 848, 49 Misc. 521; O'Brien v. R.R. Co., 113 N.Y. Sup. 329, 129 App. Div. 288; Ry. Co. v. Elliott, 28 O. St. 340; Marland v. R.R. Co., 123 Pa. St. 487, 16 A. 624, 10 A.S.R. 541; Meyers v. R.R. Co., 150 Pa. 386; 24 A. 747; Urias v. R.R. Co., 152 Pa. 336, 25 A. 566; Holden v. R.R. Co., 169 Pa. 1, 32 A. 103; Ry. Co. v. Wilson, 60 S.W. 438; Ry. Co. v. Skinner, 119 Va. 843, 89 S.E. 887; Cawley v. Ry. Co., 101 Wis. 145, 77 N.W. 179; Stafford v. R.R. Co., 110 Wis. 331, 85 N.W. 1036; Marshal v. R.R. Co., 125 Wis. 96, 103 N.W. 249; White v. Ry. Co., 147 Wis. 141, 133 N.W. 148; Ry. Co. v. Smith, 40 L.R.A. 246, 86 Fed. 295, 30 C.C.A. 58; Ry. Co. v. Andrews, 130 Fed. 65, 64 C.C.A. 399; Waters-Pierce Oil Co. v. Van Elderen, 137 Fed. 557, 70 C.C.A. 255; Ry. Co. v. Collier, 137 Fed. 347; R.R. Co. v. Cundieff, 171 Fed. 319, 96 C.C.A. 211; R.R. Co. v. Hurlburt, 221 Fed. 907, 137 C.C.A. 477; Am. Car Fndry. Co. v. Kinderman, 216 F. 499, 132 C.C.A. 577; Hickey v. R.R. Corp., 8 F.2d 128; Michelson v. Nebraska, etc., Co., 63 F.2d 597; Billingsly v. R.R. Co., 100 Miss. 612, 56 So. 790; Ry. Co. v. McGee, 117 Miss. 370, 78 So. 296; R.R. Co. v. Cox, 132 Miss. 564, 97 So. 7.
Appellant submits that Tessie Roberts' qualities of obedience are not an element of damages, and appellees' emphasis upon this feature was but a deliberately calculated attempt to affect the hearts of the jury and cause their hearts to sway their heads.
Whether the person complaining of an injury has himself exercised due caution is likewise to be determined by circumstances, for what would be such in one state of case would not be in another; and it is obvious dictate of common sense that greater caution and circumspection are required by one surrounded by increased difficulties and perils beyond those usually encountered.
R.R. Co. v. French, 69 Miss. 121, 12 So. 338; Jobe v. R.R. Co., 71 Miss. 734, 15 So. 129.
By two of the instructions the jury was instructed that absolutely nothing was required of Tessie Roberts, regardless of the driver's recklessness and conditions interfering with free vision. Of course, if not required of Tessie Roberts, it was not required of any other occupant of the bus. This would mean that the occupants of a bus are utterly free from an obligation which rests upon every other individual in the state. If this court now so holds, it must first overrule decisions covering a period of over thirty years.
Since the train was in plain view, then the failure to give signals was not a proximate cause, and, therefore, the jury could not find for appellees.
14 R.C.L. 793; Lackey v. R.R. Co., 102 Miss. 339, 59 So. 97; Harrison v. Garner, 110 Miss. 586, 70 So. 700; Bank v. Hulsey, 112 Miss. 632, 73 So. 621; Owen v. Anderson, 119 Miss. 66, 80 So. 386; Dent v. Mendenhall, 139 Miss. 271, 104 So. 82; Veney v. Samuels, 142 Miss. 476, 10 So. 417; R.R. Co. v. Hawkins, 132 So. 742; Godrey v. Ry. Co., 101 Miss. 565, 570, 571, 50 So. 534; R.R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; R.R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Coleman v. Adair, 75 Miss. 660, 23 So. 389.
Where a traveler sees the train coming and instead of waiting for it to pass undertakes to cross the track and receives injury he cannot recover, even though the engineer neglected to sound signals.
C.R.I. P.R.R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Scofield v. C.M. St. P.R.R. Co., 114 U.S. 615, 29 L.Ed. 224; N.P.R.R. Co. v. Freeman, 174 U.S. 399, 43 L.Ed. 1014; B. O.R.R. Co. v. Goodman, 275 U.S. 66, 72 L.Ed. 167.
The verdict is invalid, ad initio.
Sections 605 and 606, Code of 1930.
The verdict evinces bias and prejudice.
Hannah Simrall, of Hattiesburg, for appellants.
No witness in this case testifies or even attempted to testify that a person situated as Williamson was situated could have heard the bell on the locomotive if it had been ringing. The jury had no testimony before it on which to base a verdict that the failure of the railroad company to ring the bell proximately contributed to this injury.
Section 1652, Elliott on Railroads (3 Ed.).
In the case at bar, the jury, being without testimony on which to base its verdict with reference to the effect of the failure to blow the whistle, was left to conjecture and speculation.
It was error for the trial court to send this case to the jury under such circumstances.
52 C.J. 510, sec. 2076; Kearns v. Southern Ry. Co., 139 N.C. 470, 52 S.E. 131; L. N.R.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516; Marquese v. Sontheimer, 59 Miss. 430; Bufkin v. L. N.R.R. Co., 161 Miss. 594, 137 So. 517.
Under the doctrine so clearly announced and laid down in the foregoing cases, the railroad company is completely insulated from any damage and liability in this case because the act of Ernest Williamson in driving the school bus onto the railroad track is the efficient intervening cause that brought about the injury to and the death of Tessie Roberts. The railroad company might have gone along from now until eternity without ever ringing its bell and never caused any injury to anyone, unless and until there was affirmative, positive action on the part of the person that was injured, or on the part of someone else.
The record demonstrates that the train was within the range of vision to which Williamson testifies. The law will conclusively presume that Williamson saw the train and simply undertook to beat it across the track.
The witnesses for the appellees having testified that Williamson looked, and Williamson having testified that he looked, the fact is conclusively proven insofar as the appellees are concerned. Therefore, the failure, if indeed there was any failure to ring the bell, did not contribute to the death of Tessie Roberts, and we respectfully submit that the trial court, therefore, should have directed a verdict for the defendant on this ground; and we respectfully submit that this court should now direct the entry of a judgment in favor of the railroad company.
It is our sincere and abiding belief that a careful evaluation of the testimony given by the witnesses that the bell did not ring will inevitably lead the court to the conclusion that it was wholly lacking in probative value.
Moore on Facts, secs. 1196, 1199.
We respectfully submit that a consideration and evaluation of the testimony of the many witnesses who testified in this case according to the rules and standards laid down by this court demonstrate conclusively that the testimony offered on behalf of the appellees as to the effect that the bell was not ringing is insufficient in probative value and weight to support and sustain the verdict of the jury.
Where a sound is heard by one person, the inference would be that all persons of good hearing, and having equal opportunity to hear, have heard the sound also.
Moore on Facts, sec. 192.
Verdicts and judgments must rest on evidence.
Brewer Montgomery, of Clarksdale, amici curiae.
Our attention has just been called to the fact that in the above styled case, one of the questions before the court on appeal is, whether or not in tort cases a jury is permitted to return several verdicts in separate amounts against joint tort-feasors. We are of counsel in a case pending in another county in which an appeal to this court has been perfected, and in which the precise question will be submitted for decision. We therefore respectfully beg leave to submit our views at this time. We expressly disclaim any desire or purpose to intermeddle in the cause of either party upon other questions involved.
Statute law of the state expressly confers upon juries in all cases tried in circuit courts the power to render so many verdicts as may be necessary to the adjustment of the rights of the parties under the evidence.
Sections 605 and 606, Code of 1930; Aven v. Singleton, 132 Miss. 256, 96 So. 165.
The statute law authorizing separate verdicts against defendant tort-feasors is just.
Central Passenger R.R. Co. v. Kuhn, 6 S.W. 442; 30 A.L.R. 790; 62 A.L.R. 239.
T.B. Davis and Hall Hall, all of Columbia, for appellees.
There was an issue for the jury as to whether the whistle was blown or bell rung continuously for three hundred yards.
Kippenbrock v. R.R., 194 S.W. 50; Warren v. Jackson, 204 Ill. App. 576.
The statute provides bell shall be kept ringing or whistle shall be kept blowing continuously.
Section 6125, Code of 1930.
"Continuously" means without separation or interruption of sequence, without cessation, without break, without intervening time.
13 C.J. 206 and 209; Webster's New Int. Dictionary; N.O. N.E. v. Hegwood, 124 So. 66; R.R. v. Simmons, 103 S.E. 609.
Trial court will not be put in error in question not raised at trial.
There may be two concurring proximate causes, and if both are negligent and both concur to produce injury, neither acts as an intervening cause to excuse the other.
C. G. v. Lee, 115 So. 784; P.S. Corp. v. Watts, 150 So. 195.
Whether signals given, and whether failure to warn is proximate cause of collision, held question for jury, and duty of vehicle drivers defined.
R.R. v. Crominarity, 86 Miss. 464; Skipwith v. R.R., 95 Miss. 50; Fuller v. R.R., 100 Miss. 705; R.R. v. Lucken, 102 So. 393, 137 Miss. 572; R.R. v. Hudson, 107 So. 369, 142 Miss. 542; R.R. v. Lee, 115 So. 782, 149 Miss. 543; R.R. v. Simmons, 117 So. 345; R.R. v. Simmons, 121 So. 145; R.R. v. Beasley, 130 So. 499, 158 Miss. 370; Young v. R.R., 147 So. 342; R.R. v. Pittman, 153 So. 382; R.R. v. Nichols, 138 So. 365.
The failure to give signals did proximately cause or contribute to collision. What is proximate cause is a question for the jury.
Deceased had no knowledge of approaching train, and driver's negligence cannot be imputed to her. She was where she could not see, and was under no duty to look. Her only duty was to remonstrate with driver if and when she knew a train was approaching.
Driver's negligence in failing to see train would not have barred a recovery by him, and cannot, therefore, bar recovery by an innocent passenger riding in the bus.
R.R. v. Seymour, 114 So. 35; Davis v. Elzey, 88 So. 630; R.R. v. Arrington, 107 So. 378.
There was no error in allowing Williamson's attorney to cross-examine the railroad's witnesses or in allowing plaintiff's counsel to cross-examine Williamson.
Section 1549, Code of 1930; Becker v. Kock, 58 Am. Rep. 515; Hutel v. Cuddy, 97 S.E. 794; Meador v. Evans, 66 So. 446; R.R. v. Stephenson, 66 So. 495; Ins. Co. v. Arabian, 64 So. 635; Miss. Ut. Co. v. Smith, 145 So. 898; Comm. v. Mullin, 23 N.E. 51.
There was no error in showing deceased was obedient.
17 C.J. 1357; R.R. v. Delaney, 25 Am. Rep. 308; Gulf Ref. Co. v. Miller, 121 So. 484.
There was no error in admission and exclusion of evidence offered.
Meek v. Perry, 36 Miss. 260; State v. Arnold, 58 A.S.R. 867; 26 R.C.L. 1033; art. 1, secs. 1 and 2, Constitution; Panama Ref. Co. v. Ryan, 79 L.Ed. 223; section 6124, Code of 1930; Miss. Ut. Co. v. Smith, 145 So. 898.
As to plaintiffs' instruction that deceased was guilty of no negligence, see:
As to refusal of defendant's instruction requiring Williamson to get out of the truck and look for a train, and barring a recovery by appellees if he failed to do so, see:
There was no irregularity in the verdict. Appellant and Williamson were joint tort-feasors and jointly liable.
Nelson v. R.R., 98 Miss. 306; R.R. v. Clark, 85 Miss. 697; 62 C.J. 1130, 1131, 1136; Washington, etc., v. Lansden, 43 L.Ed. 550; Nashville v. Trawick, 10 L.R.A. (N.S.) 195; Hall v. McClure, 30 A.L.R. 782; 30 A.L.R. 790.
Where the jury undertakes to apportion damages against different joint tort-feasors, the proper course is to return the verdict to the jury and instruct them to render verdict for an entire sum against all, just as was done in this case.
Hall v. McClure, 30 A.L.R. 782; 30 A.L.R. 795, 796; Tyrrell v. Lockhart, 3 Blackf. 136; Scott v. Chope, 49 N.W. 940; Curtis v. Smart, 32 N.C. 97; Bank v. Mitchell, 140 So. 449; El Paso, etc. v. DeGarcia, 10 S.W.2d 426; Ray v. Ray, 245 S.W. 287; R.R. v. Treadwell, 164 S.W. 1089; Dahlgren v. Israel, 204 Ill. App. 340; Montgomery v. Maynard, 33 Vt. 450.
The Mississippi rule requires the trial judge to reject the verdict and send the jury back for further deliberation, when an improper, insufficient or irregular verdict is returned into court.
The verdict does not evince bias and prejudice.
Argued orally by T.P. Brady and T.C. Hannah, for appellant, and by Lee D. Hall, for appellee.
This is a case of injury and death by collision at a railroad grade crossing, and the negligence charged against the railroad company is the failure to give the statutory warning signals. With few exceptions, such a case is the easiest to prosecute and the hardest to defend among all the cases that come before courts of justice. Always the interested parties and the occupants of the vehicle struck at the crossing testify with unanimity that no warning signals were given, and the train crew with similar unanimity testify that the signals were duly sounded as the statute requires; always among those within sight and hearing, there are some who are ready and willing to swear, most of them honestly and with conscientious positiveness, that no signals were given and in particular that the bell did not ring; and there are an equal or more often a greater number who testify, most of them with equal honesty and positiveness, that the whistle blew and the bell rang; and there is nearly always a verdict for the plaintiff. And thus on appeal there is usually presented to the appellate court, when negative testimony is weighed according to established legal standards as compared with positive testimony, the difficult question whether the verdict is against the great weight, the overwhelming weight, of the evidence.
And such is the case here. A school bus carrying thirty-two children — and eight or ten others who were gratuitously crowded therein — approached a grade crossing in the village of Bassfield at the exact time when the westbound passenger train of appellant railroad company was due at that crossing. The driver of the bus was a minor nineteen years of age. The driver stopped the bus at a point about twenty-six feet from the nearest rail of the main line of the railroad, and, as he claims, he looked and listened for a train. After a brief moment's stop, the driver started forward moving at a rate of about four miles per hour, arriving on the main line track as the train reached the same point, with the result that several occupants of the bus were injured or killed, among the latter being the fourteen year old daughter of appellees, the plaintiffs. It was a cold day and the bus was inclosed by heavy curtains, so that there was no opportunity for the occupants of the bus to see, except that the driver and those on the seat with him could see through glasses near him.
To maintain in their behalf the issue as to the warning signals, plaintiffs introduced fourteen witnesses, and on that issue the defendant railroad introduced twenty-one witnesses. In their briefs the parties have dealt with and analyzed this testimony along the same lines as was done in the opinion in Mobile O. Railroad Co. v. Johnson, 157 Miss. 266, 126 So. 827, with the result that by their method of analysis and argument plaintiffs show that the evidence preponderates in their favor, while the railroad company shows that the evidence not only preponderates, but is overwhelming in its favor. We cannot deal with such a volume of testimony in detail. We can only say that the proof preponderates overwhelmingly that the customary signals by the whistle were given, but equally preponderates that the whistle signals, while given at frequent intervals, or repeatedly, were not continuous, as required by the statute as to crossing signals by whistle, or else by bell.
This leaves as the determinative issue whether the signals by the ringing of the bell were continuously sounded. Upon this issue, as best we can make it out by the typewritten record rather than seeing and hearing the witnesses, we conclude that the evidence preponderates in favor of the railroad company; but, this, of course, does not end the difficulty so far as this appellate court is concerned, for before we can interfere, the testimony must so strongly preponderate that we can safely say that it was overwhelming in favor of the appellant; and this is to invite this court into a field of interference which it rarely enters and then only with the most cautious reluctance. The reasons for this reluctance rest in the constitutional limitations upon our powers in respect to the facts, as we fully explained by way of review in Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552.
We cannot safely say that the evidence in the case now before us so strongly preponderates in favor of the appellant as that it is clearly overwhelming. Because of their extremely favorable position upon the ground and in close proximity to the approaching train, and because from the particular circumstances their attention was drawn to it, there were several witnesses for the plaintiffs who made and were able to make a stronger case for the plaintiffs than was that reviewed in the Johnson case, above referred to, and the facts here in support of the verdict are stronger than in either of the several following recent cases in this court, wherein the court declined to reverse: Yazoo M.V.R. Co. v. Lucken, 137 Miss. 572, 587, 102 So. 393; Yazoo M.V.R. Co. v. Beasley, 158 Miss. 370, 130 So. 499; St. Louis S.F.R. Co. v. Nichols, 161 Miss. 795, 138 So. 364; Yazoo M.V.R. Co. v. Pittman, 169 Miss. 667, 153 So. 382.
Appellant railroad next contends that even if this court is unable to interfere on the issue of the warning signals and even if, therefore, the case must be determined here upon the conclusion that the statutory signals were not continuously sounded, nevertheless the railroad is entitled to a reversal upon the point that the negligence of the bus driver was the sole proximate cause of the injury. The railroad says that although the bell was not rung, the train was within full view and within three hundred feet of the bus driver when he stopped and looked, and that having looked he cannot be heard to say that he did not see the approaching train. 1 Moore on Facts, pp. 204-206. And since in law he saw the train and thus knew of its near approach, the action of the bus driver in moving forward to a collision with the train was the voluntary, intervening act of an independent agent which had the effect to insulate the negligence of the railroad and to make that negligence the remote cause and the negligence of the bus driver the proximate cause.
The bus driver averred that he did not see the train, and gave it as his excuse for not seeing it that there was a pile of cross-ties so near the railroad track as to cut off his view from the approaching train. The evidence shows the presence of the cross-ties and that they did interfere with a view unless the view were carefully taken with some deliberation to see an approaching train, but the proof strongly preponderates that the ties did not entirely cut off the view and would not prevent the bus driver from seeing the approaching train had he carefully and deliberately looked, taking sufficient time to do so well. There is to be considered also in this connection that the highway crossing was not at right angles with the railroad, and to see an approaching train was not easy or so quickly to be done as had the bus been stopped at right angles with the railroad track. We think the evidence establishes as the more reasonable conclusion from all the facts and circumstances that this bus driver was in a hurry to be on his way, as he was already late, and that instead of carefully looking and listening and taking the time and caution to look and listen well, his stop and gesture of looking and listening was only a gesture pro forma; and, without actually knowing or taking the time to know whether a train was coming or not, he went forward to the consummation of a pitiful catastrophe; which presents, therefore, a case of concurrent negligence, as was the case in Columbus G.R. Co. v. Lee, 149 Miss. 543, 115 So. 782.
At the request of plaintiffs the court granted an instruction that, under the evidence, plaintiffs' decedent was guilty of no contributory negligence. Considered in connection with some of the detached language used in Yazoo M.V. Railroad Co. v. Beasley, 158 Miss. 370, at pages 379, 380, 130 So. 499, it might be maintained that there is no error in this instruction. More strictly, however, the instruction is technically erroneous in that it assumes against appellant two issues of fact in dispute. But the technical error is not sufficient to work a reversal in this case for the following reasons: It is well settled by our decisions that a guest or passenger in a vehicle is not chargeable with the negligence of the driver over whom the passenger has no control, until the guest or passenger has become aware of that negligence and of the probable danger thereof, and thereupon fails reasonably to remonstrate or to escape, if escape be safely or reasonably possible. The jury found that the bell did not ring, and the testimony of those of the occupants of the bus who were introduced as witnesses is that they did not hear any of the sounds of the whistle until the emergency alarm was given, when the locomotive was about one hundred feet or less from the point of collision. If the others in the bus did not hear the whistle until then, we think we ought to accept it as probable that the deceased did not hear it before that time, and that, since she could not see and was in the rear end of the bus some distance from the driver, she would have had no time after the emergency alarm to accomplish anything by way of remonstrance, and nothing towards escape.
The jury returned, into open court, two separate verdicts, one for the plaintiffs against the defendant railroad company for eight thousand five hundred dollars, and another for the plaintiffs against the other defendant, the bus driver, for one thousand dollars. The court stated to the jury that it was irregular to return two separate verdicts; that the jury could return only one verdict and against both defendants in the same amount and in such amount as the jury shall determine, and the court directed the jury to return to their room. Defendant railroad company objected to any further consideration by the jury, and to any oral direction by the court to the jury. This objection was overruled and the jury retired and presently brought in one verdict against both defendants for nine thousand five hundred dollars. The defendant railroad company objected to the acceptance of that verdict by the court and moved for a mistrial. This further objection and motion was overruled, and judgment was accordingly entered for nine thousand five hundred dollars.
We have already stated that the facts reasonably interpreted in the light of the verdict disclose a case of concurrent negligence on the part of both defendants, and it has long been the settled substantive law that, in such cases, when the concurrent negligence produces a single, indivisible injury, both the defendant tort-feasors are equally liable for the entire damage sustained. In the absence of a statute expressly so authorizing, there is no apportionment or contribution between them. Our statute, sections 605, 606, Code 1930, authorizing separate verdicts as against several defendants is a procedural statute only, and does not, in any respect, alter or intend to alter the substantive law. In order to receive several verdicts under that statute, the substantive law controlling the case must be such as to impose several separable and different respective liabilities, which is not the case here. Cf. Aven v. Singleton, 132 Miss. 256, 96 So. 165.
The court followed the correct procedure in returning the two verdicts to the jury for further consideration with directions that one verdict for an entire sum be rendered. The recent authorities on this point are collected in a note, 30 A.L.R. beginning at page 795. Nor is the power of the trial judge any the less in that particular respect because of section 586, Code 1930, which regulates the manner in which juries shall be instructed by the court. From the earliest times in the state's history, it has been the approved practice, when the verdict is not in legal form, or is ambiguous, or imperfect upon its face or is not responsive to the issues, or is beyond the power of the jury in material respects apparent upon the face of the verdict or verdicts, to require the jury to retire and to return a verdict which in form and effect will be such as the law allows and contemplates as a perfected return in all its formal parts. Prussel v. Knowles, 4 How. (Miss.) 90; Maclin v. Bloom, 54 Miss. 365; Louisville N.R. Co. v. King, 119 Miss. 79, 80 So. 490; Morris v. Motor Co., 144 Miss. 861, 110 So. 683.
There are forty-five separate assignments of error. All those not covered by the foregoing paragraphs of this opinion may be classed under the general designation of minor errors. They have nevertheless been carefully considered. The trial lasted several days and the report of it fills four volumes. It would be practically impossible that any trial judge could so well foresee all possible phases and eventualities in such a lengthy trial as not to make some errors, which he would not have made could he have seen the case so well at the beginning and during its progress, as he could see, and we can, at the end upon a deliberate and carefull review of the completed record. And as said in Goins v. State, 155 Miss. 662, 667, 124 So. 785, this court has, years and years ago, abandoned any such visionary expectation as that records of trials shall be technically perfect. The question now is were the errors so serious and prejudicially harmful as to have substantially affected the result in the case, to which we must answer that in our opinion there are materially none such in this case.