June 11, 1928.
1. TRIAL. Refusal to enter verdict in accordance with showing that jury reported disagreement under misapprehension verdict could not be reported by nine jurors held not error.
Where, after jury had reported to court inability to agree upon a verdict, it appeared that, after retirement, nine of jurors had agreed upon a verdict, but did not know that verdict could be reported upon such agreement, trial court held not to have erred in denying motion to enter a verdict in accordance therewith and leaving case standing as a mistrial; the jury never having agreed to report a verdict, but, on the contrary, reporting a disagreement claimed to have been based on an erroneous understanding of the law.
2. RAILROADS. Instruction requiring railroad to prove it was not negligent in crossing collision held erroneous.
Instruction, in action against railroad for injuries sustained in collision at railroad crossing between automobile and a train backing over such crossing, imposing on defendant the burden to show all facts necessary to prove that it was not negligent with reference to such injury, held erroneous.
3. RAILROADS. Instruction authorizing inference of railroad's negligence in crossing collision, if unable to determine cause of injury, held erroneous.
Instruction, in action against railroad for injury in crossing collision between automobile and train backing thereover, authorizing inference of defendant's negligence in case jury was unable to determine whether injury was result thereof, held erroneous.
APPEAL from circuit court of Quitman county; HON.W.A. ALCORN, JR., Judge.
H.D. Minor, Chas. N. Burch, C.H. McKay and Lowrey Lamb, for appellant.
It was error on the part of the court below to deny the petition or motion filed by defendant the day after the first trial which was based on the fact that nine of the jurors, shortly after entering the jury room, agreed upon a verdict for the defendant but did not return such a verdict because they thought unanimous consent was necessary. This motion was supported by the affidavit of the nine jurors so agreeing. Cogan v. Ebden, 1 Burr. 383; Prussel v. Knowles, 3 How. 90; Wirt v. Reid, 123 N.Y.S. 706.
Prima-facie statute not applicable at all here. We very earnestly ask the court's consideration of this proposition. The statute can never apply until it has first been clearly established that the locomotive or train was the offender. It was never intended to create a presumption that the plaintiff and his witnesses have given the true version of the facts relating to the accident and that the version given by defendant's witnesses is untrue.
Throughout the great number of cases decided by this court on the prima-facie statute there runs the principle often declared and always adhered to that where all the facts and circumstances are in evidence the jury must determine liability from such facts and circumstances and not upon the statute. A. V.R. Co. v. Thornhill, 106 Miss. 387; I.C.R. Co. v. Gray, 118 Miss. 614; Hines v. McCullers, 121 Miss. 666; Davis v. Elzey, 126 Miss. 809; Davis v. Temple, 129 Miss. 12; G.M. N.R. Co. v. Brown, 138 Miss. 39; Southern Ry. Co. v. Simpson, 149 Tenn. 462.
Instruction No. 6 erroneous. This instruction declared that the burden was on the defendant "to show all the facts necessary to prove that defendant was not negligent." Such an instruction has been more than once condemned. Davis v. Temple, 129 Miss. 6; Hines v. McCullers, 121 Miss. 666.
Instruction No. 7 fatally wrong. The substance and effect of this instruction was to direct the jury that "if all the facts and circumstances under which such injury was inflicted are in evidence . . . and further if there is any conflict in the evidence as to the facts and circumstances . . . and the jury is unable to determine, for any reason, whether the injury was the result of negligence of the defendant . . . then it cannot be said that such facts and circumstances are known in a legal sense" and the prima-facie statute operates to require a verdict against the defendant.
The practical result of such an instruction is rather startling. Two vehicles, each driven by a dangerous agency, come into collision. The two men in the automobile say that it was struck by the train. Three men on the train and a disinterested bystander say that the automobile ran into the side of the train. The trial judge told the jury that if they find "all the facts and circumstances" under which the collision occurred are "in evidence and known to the jury" but, "for any reason," they are unable to agree, then the law assumed the guilt of the defendant and they must find in accordance with the testimony of plaintiff and his witness as against the witnesses for the defendant. Such an application of the statute, we confidently believe, cannot be sustained. It is opposed to the uniform course of decisions.
C. G.R. Co. v. Lee, 115 So. 782 (Miss. 1928). This case is so fresh in the mind of the court that it scarcely needs review. It overruled C. G.R. Co. v. Fondren, 145 Miss. 679, where it was held that the jury should not be instructed at all on the statute where all the facts and circumstances of the accident were in evidence. The Lee case held that even though all the facts and circumstances are shown, it is still proper to instruct the jury on the statute. There is nothing, therefore, in the opinion in the case of C. G.R. Co. v. Lee, which at all conflicts with our contention in this case.
Gore Gore and J.D. Stone, for appellee.
We do not concede that the deliberation of the jury can be inquired into in such a manner as was undertaken in this case. We submit that no such practice is permissible. It is not permissible to obtain and enter a verdict in the manner undertaken by the defendant in this case. 27 R.C.L. 835; James v. State, 55 Miss. 57; Fox v. Smith, 3 Cow. (N.Y.) 23; Jackson v. Hawks, 2 Wend. (N.Y.) 619; Johnson v. Howe et al., 2 Glim (Ill.) 342; Rigg v. Cook, 4 Glim. (Ill.) 336, 46 Am. Dec. 462; Friar v. State, 3 How. 425; Root v. Sherwood, 6 Johns. (N.Y.) 68, 5 Am. Dec. 191. The distinction between the Cogan, the Dalrymple and the Prussel cases, and the case at bar is that in the former cases a verdict was returned by the jury and in the case at bar no verdict was returned by the jury, but the jury repeatedly stated to the court that they had not arrived at a verdict. Walker v. Commissioners, 1 S. M. 379; Dearing v. Ford, 13 S. M. 274; Patrick v. Carr, 50 Miss. 207; Herron v. Bondurant, 45 Miss. 688; Trabue v. The State, 56 Miss. 160. See 39 Am. Dec. 175.
In opening the argument for the appellant on the application of the prima-facie statute to the case at bar, counsel laid down two propositions: (1) that the statute can never apply until it has been clearly established, first, that the locomotive or train was the offender, and (2) that it was never intended to create a presumption that the plaintiff and his witnesses have given the true version of the facts relating to the accident and that the version given by the defendant's witnesses is untrue. We agree with counsel as to the correctness of the second proposition, but disagree as to the correctness of the first proposition.
The statute is only a legislative adoption of a rule of evidence, that, certain things being shown, these things speak for themselves, to the effect that the railroad company has not properly operated its locomotives or cars, and in such a case, proof of the injury shifts the burden of proof, or rather, as interpreted in this state, such proof is sufficient to meet the requirement that the plaintiff must sustain the burden of proof, and in case of failure of the defendant to rebut the proof thus established, the plaintiff will prevail in the action. The defendant may escape by showing that it exercised due care in such operation. If it does this, then the plaintiff's action must fail. It would fail by not producing any proof as to the facts relating to the injury. It would fail, also, by producing proof which so far conflicted with the testimony of witnesses for the plaintiff that the jury disbelieved the testimony produced by it. It would fail with all the more certainty, if its proof as produced, showed a case of negligence on its part. The failure of the defendant in this case, resulted from a combination of the last two states of fact.
We do not wish to be understood to concede that either of the two instructions referred to by counsel for the appellant are wrong or should not have been given and upon this question we plant ourselves upon the Thornhill case, 106 Miss. 387, 63 So. 674, and we submit that this case sanctions both of these instructions as a correct statement of the law. In the last case that we have seen, involving this prima-facie statute, Columbus Greenville Ry. Co. v. Lee (Miss., 1928), 115 So. 782, court reaffirmed the law as announced in the Phillius, Hollingshed and Thornhill cases, among others, and we submit that this case should be affirmed.
Argued orally by H.D. Minor, for appellant, and W.E. Gore and J.D. Stone, for appellee.
Dr. H.D. Glass, of Quitman county, instituted suit against appellant railroad company for an alleged injury sustained at a railroad crossing in Clarksdale; it being claimed that the doctor's car was struck by a train backing over said crossing.
Suit was filed in May, 1926, and came on for trial at the June term thereafter. The case was submitted to the jury, who, after mature deliberation, reported to the court its inability to agree upon a verdict, whereupon the court discharged the jury.
On the following day appellant presented to the court a motion to enter a verdict in its favor, alleging as ground therefor that shortly after retiring to their room nine of the jurors agreed upon a verdict for the railroad company, but did not know that a verdict could be reported upon the agreement of nine jurors. Among the instructions was one to the effect that, if as many as nine jurors agree upon a verdict, it could be reported as the verdict of the jury. The motion was accompanied by the affidavit of nine jurors setting forth the above facts. The jurors signing the affidavit were called to the witness stand for cross-examination by counsel for plaintiff, and testified without objection. There was conflict as to whether, in fact, they ever actually agreed upon a verdict for defendant railroad company. We find in their testimony, as to why a verdict was not returned, such expressions as, "If we had known, we would have;" "we did not know that nine could;" "they didn't know the law on it." One juror said, "At one time two of the jurors were willing to give a verdict either way, and were that way throughout their deliberation." Another said they did not reach any agreement in the jury room, but stood nine to three both times when they reported to the court, but that fact was not made known to the court.
The presiding judge took the matter under advisement, and at the next term of court overruled the motion of defendant, which left the case standing as a mistrial.
Subsequently, Dr. Glass died, and Mrs. T.N. Gore was appointed administrator of his estate. Revivor was had in his name, and the case was again put to trial, resulting in a verdict for plaintiff. A special bill of exceptions setting out the foregoing proceedings was duly signed and made a part of the record.
It is argued that appellant was entitled to have a verdict entered in its favor at the first trial, and the action of the court refusing same is assigned for error.
Appellant relies upon the old case of Prussel et al. v. Knowles, 4 How. (Miss.) 90, and Wirt v. Reid et al., 138 App. Div. 760, 123 N.Y.S. 706. The former was an action of trespass against several defendants. The jury reported a verdict for plaintiff, and was discharged by the court. One of the number remained in the courtroom, and it was brought to the attention of the court that the jury did not find against Allen, then dead, nor against McDonald, another defendant, but found against all the other defendants. The entire panel immediately came in, and confirmed the statement of the juror. Over objection, the trial court ordered the verdict amended accordingly. This court held this not to be error. It is to be distinguished from the case at bar, because there the jury had agreed upon a verdict, and intended to so report it, but by error included two defendants not intended to be included. Here the jury never agreed to report a verdict; on the contrary, reported a disagreement based, as it is claimed, on an erroneous understanding of the law.
In Dearing v. Ford, 13 Smedes M. 269, this court said: " Prussel v. Knowles, 4 How. 90, carries the practice upon this head as far, probably, as it ought to go."
In Wirt v. Reid, supra, there were two defendants. On repairing to its room, the jury promptly agreed to find in favor of one defendant, but had not agreed as to the other, when discharged by the clerk on Friday afternoon, after court adjourned for the week. On Monday morning the clerk entered a mistrial. The jurors, some of whom were present, stated to the court the jury's agreement not to find against Reid. The trial court permitted the verdict to be so entered. On appeal, this action was affirmed.
In both cases relied upon there had been an agreement of the jury. They had agreed upon a verdict, as they had a right to do, as to some of the defendants. But here, it would become necessary to supply what the jury itself had failed to do. It would be a dangerous practice, inviting fraud and undue influence, and would be a violation of the well-established rule prohibiting a jury from giving testimony vitiating its own verdict. For the jury to be permitted to say, "We would have decided differently had we understood the instructions," would open a way of attack upon every verdict and result in delay and many complications.
In Norris v. State, 3 Humph. (Tenn.) 337, 39 Am. Dec. 175, the court held:
"Here a correct charge in clear and perspicuous language was delivered — but these jurors, mistaking the sense of the charge, based their verdict upon an erroneous conception of its meaning. It must be perceived that to grant a new trial upon these affidavits, would be going much farther than any former decision has gone, and would be opening a door for all the mischiefs that enlightened jurists have apprehended from the admission of such evidence to impeach a verdict."
See, also, 27 R.C.L. 896.
We do not think this ruling of the court was error.
Appellant next contends that the court erred in giving instructions Nos. 6 and 7, both of which seek to invoke our prima-facie statute. These instructions are as follows:
"No. 6. The court instructs the jury for the plaintiff that ordinarily the burden of proof is upon the plaintiff to establish his right to recover, but in this case the jury is instructed that, if the plaintiff has proven to the satisfaction of the jury that the injury complained of in the declaration was inflicted on the track of the defendant's railroad and by the running of its locomotive or cars, this is prima-facie evidence of the want of reasonable skill and care on the part of the defendant company in reference to such injury, and imposes upon the defendant the burden to show all the facts necessary to prove that the defendant was not negligent, with reference to such injury, and, if the jury believes from the evidence that all such facts are not so shown by the evidence in this case, with reference to the injury, or that the facts when shown show the defendant negligent with reference to the injury complained of, then the jury must find for the plaintiff." (Italics ours.)
"No. 7. The court instructs the jury as a matter of law that proof of injury by the running of the defendant's cars, propelled by the powerful and dangerous agency of steam, is prima-facie evidence of negligence causing such injury, and unexplained entitles the plaintiff to a verdict, but, if all the facts and circumstances under which such injury was inflicted are in evidence and known to the jury from the evidence, it is the duty of the jury to apply their minds to such facts and circumstances and if possible to determine whether or not such injury was the result of the negligence of the employees of the defendant, alone from such facts and circumstances, and further, if there is a conflict in the evidence as to the facts and circumstances under which such injury was inflicted, and the jury is unable to determine, for any reason whether such injury was the result of the negligence of the defendant's employees or not, then it cannot be said that such facts and circumstances are known in a legal sense and such prima-facie evidence of negligence on the part of such employees, remains in effect an inference of such negligence may be drawn from the infliction of such injury, and should determine the defendant's liability in this case." (Italics ours.)
On the second trial it appears that all the facts bearing upon the collision were introduced in evidence, and these facts are in conflict. These instructions cannot be upheld when tested by the rule announced in Davis v. Temple, 129 Miss. 6, 91 So. 689; Hines v. McCullers, 121 Miss. 666, 83 So. 734; Davis v. Elzey, 126 Miss. 809, 88 So. 630, 89 So. 666; Railroad Co. v. Daniell, 108 Miss. 358, 66 So. 730; Railroad Co. v. Brown, 138 Miss. 39, 102 So. 855.
Instruction No. 6 tells the jury that the statute "imposes upon the defendant the burden to show all the facts necessary to prove that the defendant was not negligent." Substantially the same language was used in an instruction in the Davis case, supra, and was there condemned, and the case reversed, the court, through Judge ETHRIDGE, saying: "When the facts are proven or appear in evidence, it is not necessary that they should exonerate the defendant from negligence."
In McCullers case, supra, an instruction said in part: "Unless the jury are so satisfied from the evidence that defendant was free from all negligence in the killing of deceased, then the jury will find a verdict for the plaintiff."
This court held, speaking through its Chief Justice:
"It is not the law that, when the facts and circumstances of an injury have been explained by the defendant by evidence which the jury believe to be true, the jury must find for plaintiff unless such facts and circumstances `satisfy the jury that the defendant was free from all negligence . . . which contributed to the injury' or `unless the whole proof satisfies the jury that the defendant was entirely free from negligence.' On the contrary, when the facts and circumstances have been proven, or have been found by the jury when the evidence relative thereto is conflicting, the presumption of negligence raised by the statute disappears, and the liability of the defendant must then be determined from the evidence, and the jury should find for the defendant, unless it appears from the evidence that he was guilty of negligence which caused the plaintiff's injury."
Instruction No. 7 falls under the condemnation of Davis v. Temple, supra, wherein the court held:
"But the statute was not designed to free the jury from the duty of deciding the conflicting evidence as to what the real facts are, but such conflicts of evidence must be determined by the jury as any other conflict of fact . . . if the facts are in evidence and do not speak negligence, or if the jury cannot find from the facts that there was negligence, the plaintiff must fail in his action."
And is also condemned in the McCullers case, supra, where the court said:
"On the contrary, when the facts and circumstances have been proven, or have been found by the jury when the evidence relative thereto is conflicting, the presumption of negligence raised by the statute disappears, and the liability of the defendant must then be determined from the evidence, and the jury should find for the defendant, unless it appears from the evidence that he was guilty of negligence which caused the plaintiff's injury."
In granting these instructions, we think the court was in error, necessitating reversal.
Reversed and remanded.