In Yazoo M.V.R. Co. v. Lamensdorf, 1937, 180 Miss. 426, 177 So. 50, suggestion of error overruled 180 Miss. 426, 178 So. 80, the Mississippi Court discussed the character of proof necessary to establish liability, using this language: "* * * and we suppose it is not now necessary to more than briefly refer to what we have so often heretofore said, to wit, that to present a possibility, rather than a believable probability, is not a sufficient basis for a verdict and judgment [citing several cases].Summary of this case from Stapleton v. Louisville Nashville Rd. Co.
November 29, 1937.
Where scene of automobile or railroad crossing accident can be disclosed by photographs, diagrams, and measurements, jury should not be permitted to view scene; especially where situation existing at time of accident has changed.
In action for death of motorist killed at railroad crossing, witnesses' testimony must be considered, if reasonably possible, on theory that all are honest and trying to tell the truth.
In action for death of motorist killed at railroad crossing, where disinterested witnesses, testifying that they heard train's whistle and bell, are supported by corroborating affirmative testimony of other disinterested witnesses, and only testimony in opposition is negative testimony of persons who did not hear whistle or bell because their attention was elsewhere, such negative testimony is insufficient to overturn affirmative testimony.
4. DEATH. Negligence.
Where there is a conflict in evidence in personal injury or death action, a jury case is presented.
5. APPEAL AND ERROR.
In determining whether evidence supported jury's verdict for plaintiffs in action for death of motorist killed at railroad crossing, the Supreme Court was required to review testimony, carefully scrutinize all cases wherein verdicts are rendered on unsatisfactory evidence, and determine judicially from all facts and circumstances whether there was sufficient evidence to uphold verdict.
In action for death of motorist killed at railroad crossing on morning of fair day, evidence that there was a statutory stop sign at crossing, that motorists went upon tracks and stopped, that witnesses saw train and heard bell and whistle, and that engineer reduced speed, did not support verdict for plaintiffs on ground of railroad's negligence (Code 1930, section 6124).ON SUGGESTION OF ERROR (Division B. Jan. 10, 1938.) [178 So. 80. No. 32808.]
1. APPEAL AND ERROR.
In determining whether evidence supported jury's verdict for plaintiffs in action for death of motorist killed at railroad crossing, the Supreme Court was required to weigh testimony of witness who estimated that motorist was stalled on track for 45 seconds with respect to ordinary human experience and observation.
In action for death of motorist killed at railroad crossing, testimony of witness who estimated that motorist was stalled on track for 45 seconds and testified that train could have easily been stopped before reaching crossing presented a possibility but was incredible as a reasonable probability and insufficient as a basis for verdict and judgment, in view of testimony that train was in full view, that its whistle and bell were sounded, and that other persons in vicinity were aware of its approach.
The scintilla of evidence rule is not recognized in Mississippi, but verdicts must be based on substantial and reasonably believable evidence.
A witness who assumes to measure a short period of time with accuracy discredits himself if his mind was in a state of anxiety or expectation at time of occurrence about which he is testifying.
APPEAL from the circuit court of Bolivar county. HON. WM. A. ALCORN, JR., Judge.
Shands, Elmore, Hallam Causey, of Cleveland, Burch, Minor McKay, of Memphis, Tenn., and Edw. C. Craig, of Chicago, Ill., for appellant.
The instructions granted to plaintiffs and defendants are in irreconcilable conflict and do not furnish a guide to the jury to reach a verdict.
G. S.I.R. Co. v. Adkinson, 117 Miss. 118; Y. M. V.R. Co. v. Williams, 114 Miss. 236; Hackney v. I.C.R. Co., 33 So. 723; Ry. Co. v. Eakin, 79 Miss. 735; I.C.R. Co. v. Sumrall, 96 Miss. 860; Miss. Cent. R. Co. v. Hanna, 98 Miss. 609; G.M. N.R. Co. v. Arrington, 107 So. 378; Marx v. Berry, 176 Miss. 1; Columbus G.R. Co. v. Coleman, 172 Miss. 514; N.O. N.E.R. Co. v. Wheat, 172 Miss. 524; Y. M.V.R. Co. v. Bruce, 98 Miss. 727; Lackey v. St. L. S.F. Ry., 102 Miss. 339.
Plaintiffs' Instruction "E" assumed that deceased was not aware of the approaching train when proof showed he was.
Reed v. Railroad, 94 Miss. 639.
Plaintiffs' instructions misdirected the jury as to whose duty it was on the locomotive to keep a lookout, to what extent a lookout should be kept, and as to speed of train.
M. O.R. Co. v. Johnson, 157 Miss. 266; Hines v. Moore, 124 Miss. 500; Hancock v. I.C.R. Co., 158 Miss. 668; 22 R.C.L. 988, 1011; Lackey v. St. Louis, etc., R. Co., 102 Miss. 338; Penney Co. v. Morris, 173 Miss. 710; Y. M.V.R. Co. v. Bruce, 98 Miss. 727; McComb Box Co. v. Duck, 174 Miss. 449.
Instructions for plaintiffs do not correctly state the doctrine of last clear chance and are in conflict with the instructions for defendant.
The doctrine of last clear chance is based upon the idea that the injured party has negligently placed himself in a place of peril; that the defendant actually saw him in his perilous position in time to prevent any injury but failed to do what a reasonably prudent person should do to prevent the injury. In such cases, the courts deem the defendant's last act of negligence to be the proximate cause of the injury and the injured party's original act of negligence as the remote cause of the injury.
The doctrine does not apply where the plaintiff's negligence concurs in the injury and continues up to the moment of the accident. In other words, where the injured party's fault existed as late as the defendant's, the doctrine does not apply.
Clemens v. Chicago, etc., Ry., 144 N.W. 345; Holmes v. So. Pac. Ry. Co., 31 P. 835; Dyerson v. Union Pac. R. Co., 87 P. 680; Southern Ry. Co. v. Bailey, 67 S.E. 365; Gilbert v. Mo. Pac. Ry. Co., 139 P. 380; Restatement, Law of Torts, secs. 479-480, pages 1253-1257; Y. M.V.R. Co. v. Williams, 114 Miss. 236; St. Louis, etc., R. Co. v. Summers, 173 Fed. 358; Dunworth v. Grand Trunk Ry. Co., 127 Fed. 307; Fuller v. I.C.R. Co., 100 Miss. 705.
The last clear chance doctrine does not apply in this case because the deceased knew that the train was approaching, knew of his own peril, and could have moved to a place of safety before the engine reached him. In failing to do so, he was guilty of an act of negligence "which continued up to the moment of the accident," which is "not concurrent merely, but really subsequent to, that of the engineer, as he, and not the engineer, had the last clear opportunity of avoiding the accident."
The court below erred in permitting a view of the scene of the accident at the particular time.
Much evidence offered by plaintiffs on the measure of damages was incompetent and speculative.
Avery v. Collins, 171 Miss. 636; Natchez Coca Cola Co. v. Watson, 160 Miss. 173; Belzoni Hardwood Co. v. Cinquimani, 137 Miss. 72; Y. M.V.R. Co. v. Barringer, 138 Miss. 296; Gulf Ref. Co. v. Miller, 150 Miss. 68; Sec. 510, Code of 1930; Missouri, etc., R. Co. v. Canada, 59 A.L.R. 743; I.C.R. Co. v. Humphreys, 174 Miss. 459, 164 So. 22; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859; Fuller v. I.C.R. Co., 100 Miss. 712, 106 Miss. 72; Y. M.V.R. Co. v. Williams, 114 Miss. 237; Bounds v. Watts, 159 Miss. 307; Y. M.V.R. Co. v. Mullen, 158 Miss. 774; Y. M.V.R. Co. v. Lee, 148 Miss. 809; Doherty v. Miss. Power Co., 173 So. 287; I.C.R. Co. v. Dodds, 97 Miss. 865; Trico Coffee Co. v. Clemens, 168 Miss. 748; Gilbert v. Mo. Pac. Ry., 139 P. 382.
The court below should have sustained defendant's motion for a new trial.
Thompson v. Miss. Cent. R. Co., 175 Miss. 547; Billingsley v. I.C.R. Co., 100 Miss. 612; Y. M.V.R. Co. v. Cox, 132 Miss. 564; Fore v. Ala., etc., R. Co., 87 Miss. 211; M. O.R. Co. v. Bennett, 127 Miss. 413; M. O.R. Co. v. Johnson, 157 Miss. 266; C. G.R. Co. v. Buford, 150 Miss. 832; Universal Co. v. Taylor, 174 Miss. 353; Gulf, etc., R. Co. v. Holcomb, 105 So. 787; Teche Lines, Inc., v. Mason, 144 So. 383; G. S.I.R. Co. v. Blaylock, 166 So. 373; Justice v. State, 170 Miss. 96; Miss. Power Co. v. Stiglets, 158 So. 907.
Marx J. Borod, of Memphis, Tenn., for appellees.
An engineer and the fireman on a railroad engine have an inviolable duty to keep a proper lookout at crossings or in approaching crossings.
Hines v. Moore, 124 Miss. 500; Railroad v. Williams, 114 Miss. 243; Illinois Central v. Dillon, 111 Miss. 526; Power Co. v. McEachern, 109 Miss. 380; Illinois Central v. Williams, 144 Miss. 804; Miss. Central v. Smith, 154 So. 533.
Where there is an obstruction upon the right of way of a railroad company, obscuring the view of the travelers at a crossing, the railroad is chargeable with notice that such obstruction will obscure the view of the engineer and fireman.
Railroad v. Williams, 144 Miss. 804.
If a railroad company in the management of its business causes an unusual peril it must meet such peril with unusual precautions and failing in this is guilty of negligence.
52 C.J. 247, sec. 1829; Railway v. French, 69 Miss. 121; Hancock v. I.C.R.R., 158 Miss. 668; Ham v. Maine Central R. Co., 116 A. 261; Hicks v. N.Y., etc., R. Co., 41 N.E. 828; 22 R.C.L. 990.
Failure to observe the statute providing that travelers stop, look and listen before crossing a railroad track does not bar recovery but only diminishes recovery if the defendant is also negligent and the negligence of the plaintiff or deceased is a proximate cause of the accident.
M. O.R.R. Co. v. Campbell, 144 Miss. 803; G. S.I. Ry. v. Saucier, 139 Miss. 497.
Where failure to observe the stop, look and listen statute is remote contributory negligence the statute neither affects nor diminishes recovery.
M. O.R.R. Co. v. Campbell, 144 Miss. 803; G. S.I. Ry. v. Saucier, 139 Miss. 497.
Where defendant is chargeable with subsequent negligence, the fact that the danger of the person killed arose in the first instance because of his own negligence does not prevent recovery and unless a proximate cause of the accident does not diminish the amount of recovery.
Cottrell v. Ry. Co., 80 Miss. 610; 51 C.J. 363, sec. 1945; Pollard v. Oregon Short Line, 11 P.2d 271; Kansas City, etc., Ry. v. Ellzey, 275 U.S. 236; Elliott v. N.Y., etc., Ry., 80 A. 283; Hines v. Champion, 85 So. 511; Grover v. Ann Arbor R. Co., 188 N.W. 363; Fike v. Pere Marquette R. Co., 140 N.W. 605; Fuller v. I.C.R.R., 100 Miss. 705, 56 So. 783.
The last clear chance doctrine is not a comparative negligence doctrine and the rule is not affected thereby.
45 C.J., sec. 542; Fuller v. I.C.R.R. Co., 100 Miss. 705.
Punitive damages are recoverable not only for wilful and intentional wrong but for such gross and reckless negligence as is, in the eyes of the law, the equivalent of wilful wrong.
Fuller v. I.C.R.R. Co., 100 Miss. 705; Teche Lines v. Pope, 166 So. 539; Godfrey v. Meridian, etc., Ry., 101 Miss. 565.
A view may be granted even though some conditions have changed, if the change is not material or if the character and extent of such charges are properly brought out in the evidence.
64 C.J. 89.
Granting of a view is discretionary with the trial court and unless it is apparent from the record that permitting the view was clearly prejudicial to the objecting party and appellant an appellate court will not usually consider any assignment going to the propriety of the view.
Where there is no objection to certain court proceedings at the time of a trial, a subsequent assignment of error raising such objection upon appeal, even if a reasonable objection, will not be considered by the court upon appeal.
The question whether an engineer and fireman saw or could have seen deceased upon the crossing and should have realized that deceased was in a place of peril is a jury question.
The question whether or not proper signals were given in a suit arising out of a crossing accident is a proper issue for the jury.
An appellant cannot complain of an instruction given at the request of appellee which is substantially like one given at his own request.
Wilson v. Zook, 69 Miss. 694, 13 So. 351.
It is not error for a trial court to grant instructions upon different theories of a lawsuit if either theory might be supported by the evidence and are reconcilable.
The instructions must be considered as a series and if, when so considered, they fully and fairly instruct the jury as to the law applicable to the issues, they will be considered sufficient.
Y. M.V.R. Co. v. Williams, 87 Miss. 344; Miss. Central R. Co. v. Hardy, 88 Miss. 732; A. V.R. Co. v. Fountain, 145 Miss. 515, 274 U.S. 759; Bass v. Burnett, 151 Miss. 852; Y. M.V.R. Co. v. Mullen, 158 Miss. 774; McKee v. Assad, 169 Miss. 496; Durrett v. Ry. Co., 171 Miss. 899.
Where the whole course of trial shows defendant's liability and that no other result could be reached the judgment against defendant should not be disturbed even in the face of erroneous instructions.
Evans v. Lilly Co., 95 Miss. 58; Gwin v. Williams, 27 Miss. 324.
A verdict on a question of fact should not be disturbed unless it is manifestly erroneous or shows that the jury was actuated by passion, prejudice or corruption.
Maynard, Fitzgerald Venable, of Clarksdale, for appellees.
The facts to be taken as true on appeal are the facts as settled by the jury.
Continental Cas. Co. v. Garrett, 173 Miss. 676; L. N.R.R. Co. v. Jones, 134 Miss. 53; G. S.I.R.R. Co. v. Simmons, 153 Miss. 327; S.H. Kress Co. v. Sharp, 156 Miss. 693; McLemore McArthur v. Rogers, 169 Miss. 650; Montgomery Ward Co. v. Hutchinson, 173 Miss. 701; Stokes v. Adams Newell Lbr. Co., 151 Miss. 711; Gillespie v. Doty, 160 Miss. 684; Eastman Gardner Co. v. Sumerall, 160 Miss. 792; Hartford Fire Ins. Co. v. Williams, 165 Miss. 233; Aetna Ins. v. Lester, 170 Miss. 353; Ill. R.R. Co. v. Ray, 165 Miss. 885; Y. M.V.R.R. Co. v. Pittman, 169 Miss. 667; Miss. Power Co. v. Brader, 171 Miss. 15.
There was substantial evidence to support the findings of fact which the jury necessarily made in returning their verdict for the plaintiff.
A party cannot complain of instructions more favorable to him than that to which he is entitled.
Independent Order of Sons Daughters of Jacob v. Wilkes, 98 Miss. 179.
Neither can a party complain of conflicting instructions, nor can a party complain of conflicting instructions where the conflict arises by reason of the fact that he has asked an erroneous instruction.
This court has, in Fuller v. R.R. Co., 100 Miss. 705, analyzed the doctrine of the last clear chance and has aligned itself with those authorities which assign its problem to the realm of "causation" and not to the field of "contributory negligence." In this case the position is squarely taken with due deliberation that where one sees another in a position of peril and could by the exercise of ordinary care avoid injuring him and does not exercise such care, this negligence is looked upon by the law as being the "cause" of the injury even though the injured person was guilty of prior negligence which placed him in the position of peril.
The doctrine of the last clear chance viewed as a phase of the doctrine of "causation" does not permit recovery in spite of contributory negligence, but characterizes the antecedent negligence of the injured party in getting into a position of peril as a remote cause or rather condition of the accident. This is negativing an essential quality of contributing negligence, namely, that it must have acted as a cause in aiding and producing the injury.
Ind. Traction Terminal Co. v. Crowley, 54 Ind. App. 566, 96 N.E. 973, 98 N.E. 1091; Smith v. Conn. R.R. Co., 80 Conn. 268, 17 L.R.A. (N.S.) 707; Nehring v. Conn. Co., 86 Conn. 109, 45 L.R.A. (N.S.) 896; Ryder v. Syracuse Rapid Transit Co., 171 N.Y. 139, 58 L.R.A. 125; Moakler v. Wilmette Valley R.R. Co., 18 Or. 189, 6 L.R.A. 656, 17 A.S.R. 717; Carrico v. W. Va. R.R. Co., 39 W. Va. 86, 24 L.R.A. 50; Chunn v. City Sub. R.R. Co., 207 U.S. 302, 52 L.Ed. 219; Bruggenman v. I.C.R.R. Co., 147 Iowa 187, 123 N.W. 1007, Ann. Cas. 1912B 876; Monsoon v. Chi. R.I. Co., 180 Iowa 1354, 159 N.W. 679, 165 N.W. 305; N.O. N.E.R.R. Co. v. Heywood, 155 Miss. 104.
The negligence of the deceased concurred with the negligence of the appellant in producing the injury, and it happens that contributory negligence is not a bar to the action, and is not a defense to liability.
N.O. N.E.R. Co. v. Heywood, 155 Miss. 104.
Technical inaccuracy of instruction are immaterial where on the whole case the jury is properly instructed.
An appellant cannot complain of an instruction given at the request of appellee which is substantially like one given at its own request.
It may be true that the fact that the view of the highway at a crossing is obstructed by intervening objects does not automatically make the negligence in not slackening speed at such crossing where the necessary signals have been given, but certainly running over it at a high rate of speed without sufficient warning signals is negligence, and where the situation demands it, or where a crossing is a much used one, the duty is on the railroad company to run its trains at a reasonable rate of speed.
Railroad Co. v. Williams, 144 Miss. 804; 52 C.J. 247, sec. 1829.
The greater the danger, the greater the caution required to avoid it, is the rule for railroad companies as for others.
Railroad Co. v. French, 69 Miss. 121; Hancock v. I.C.R.R. Co., 158 Miss. 668; Ham v. Maine Central R.R. Co., 116 A. 261; Frazier v. Hull, 157 Miss. 303; Rhodes v. Fullilove, 161 Miss. 41; 22 R.C.L. 990.
The doctrine that continuing negligence of the injured party, which continued to the moment of the accident, bars recovery and the application of the doctrine of the last clear chance where otherwise applicable, has never obtained in Mississippi but even if it did, such rule was necessarily changed by Section 511, Code of Mississippi of 1930, providing that the fact that a person injured may be guilty of contributory negligence should not bar a recovery.
Y. M.V.R.R. Co. v. Williams, 114 Miss. 236; Y. M.V.R.R. Co. v. Lee, 148 Miss. 809.
In the case at bar the engineer saw for 2000 odd feet the automobile stalled on the track with a man inclosed inside, and as he was running forward he could see the car was not moving and the man was not getting out. He could see his position of peril.
A. V.R.R. Co. v. Kelly, 126 Miss. 276; I.C.R.R. Co. v. Fuller, 105 Miss. 65; Y. M.V.R.R. Co. v. Williams, 114 Miss. 236; I.C.R.R. Co. v. Mann, 137 Miss. 819; Yellow Pine Trusteeship v. Holly, 142 Miss. 241; Miss. Central R.R. Co. v. Aultman, 173 Miss. 623; Y. V.R.R. Co. v. Daly, 157 Miss. 3; Y. . M.V.R.R. Co. v. Lee, 148 Miss. 809.
In this jurisdiction even where the court has held that the injured person was in the place of peril by virtue of the gross negligence and even where there is a physical ability to extricate oneself from danger, yet where the peril of the injured party is perceived by the defendant in time to avoid injury, there is liability on the part of the defendant. This holding of the Mississippi court is in line with the law in other jurisdictions.
Monsoon v. Chicago, etc., R.R. Co., 181 Iowa 1354, 159 N.W. 679; Brudenman v. I.C.R.R. Co., 147 Iowa 187, 123 N.W. 1007; Chunn v. City Sub. R.R. Co., 207 U.S. 352, 52 L.Ed. 219; Central of Georgia R.R. Co. v. Bates, 225 Ala. 519, 144 So. 9; Mo. Pac. v. Kipper, 174 Ark. 1083, 276 U.S. 629; Harrington v. Los Angeles R.R. Co., 140 Cal. 514, 74 P. 15; Cleveland R.R. Co. v. Masterson, 126 Ohio St. 42, 183 N.E. 873; Morrison v. Rhode Island Co., 41 R.I. 474.
Even if it be true, as a matter of fact, if deceased was guilty of continuing negligence, which we deny, and even if it be conceded that continuing negligence prevents the application of the doctrine of the last clear chance, the defendant asked for no instruction to this effect but submitted to the jury the question whether or not such continuing negligence was the sole cause of the death of deceased.
Gentlemen cannot try their case on one theory in the court below and on another theory here.
It is submitted that the instructions for the plaintiff and appellant taken together even on appellant's theory, give him the full benefit, though we think erroneously, of the contention that deceased saw the train and could have extricated himself. Instructions are to be construed together.
Y. M.V.R.R. Co. v. Williams, 87 Miss. 344; Y. M.V.R.R. Co. v. Kelly, 98 Miss. 367.
An instruction which by itself might be construed as erroneous may be cured by another instruction correctly stating the rule of law.
Am. Ins. Co. v. Antrim, 88 Miss. 518; Ala. Co. v. Groom, 97 Miss. 201; Y. M.V.R.R. Co. v. Kelly, 98 Miss. 368; So. R.R. Co. v. Ganong, 99 Miss. 546; Miss. Valley R.R. Co. v. Pillow, 101 Miss. 527; Hattiesburg v. Beverly, 123 Miss. 759.
The principle that a view is discretionary with the court is embodied in our statute, Section 2066, Code of Mississippi of 1930, and is so specifically provided. The rule is well settled that where trial procedure is committed to the trial court its ruling will not be disturbed except where there has been abuse of discretion, and this is affirmatively made to appear. This is particularly true on appeal where all actions of the lower court are presumed correct, and the burden is on appellant to show to the satisfaction of the reviewing court that error has in fact been made, and that such error was prejudicial.
Wigmore on Evidence, sec. 1163; National Box Co. v. Bradley, 171 Miss. 16.
Maynard, Fitzgerald Venable, of Clarksdale, for appellees on Suggestion of Error.
In the decision rendered, as evidenced by the opinion, the court has failed to give full consideration to the real legal theory upon which the case was tried in the lower court, viz: That Lamensdorf, however guilty of negligence in going upon the railroad tracks, was seen by the enginemen in a place of peril and in sufficient time to have been saved, but that they, seeing his peril (or with such opportunity to see as raises the presumption that they did see) negligently relied upon the false presumption that he would be able to get off the track, and by such negligence they caused his death.
By the decision of the court, as evidenced by its opinion, the court has overruled without particular reference the cases in regard to the following legal point: Before taking a case from the decision of the jury is justified, the evidence is to be considered most favorably for the plaintiff and if so considered it tends to establish the case it is for the jury.
Williams Yellow Pine Co. v. Henley, 155 Miss. 893, 125 So. 552; Masonite Corp. v. Dennis, 175 Miss. 855, 168 So. 613; Pitt v. Miss. Power Light Co., 177 Miss. 288, 170 So. 817; Gravette v. Golden Sawmill Trust, 170 Miss. 15, 154 So. 274; Life Ins. Co. v. Jeffcoats, 164 Miss. 659, 143 So. 842; Life Cas. Co. v. Andrews, 149 Miss. 306; Dean v. Brannon, 139 Miss. 312, 104 So. 173; Lee County Gin Co. v. Middlebrooks, 161 Miss. 427, 137 So. 108; Lowe v. M. O.R.R. Co., 149 Miss. 889, 116 So. 601; Yates v. Houston Murray, 141 Miss. 885, 106 So. 110; Wise v. Peugh, 140 Miss. 479, 106 So. 81; McKinnon v. Braddock, 139 Miss. 154, 104 So. 454; New Orleans, etc., R.R. Co. v. Jackson, 140 Miss. 385, 105 So. 770; Trading Co. v. Lbr. Co., 110 Miss. 39, 69 So. 707; I.C.R.R. v. Boehms, 70 Miss. 11, 12 So. 23; Carson v. Leathers, 57 Miss. 650; Mo. Pac. R.R. v. Hanna, 168 Miss. 867, 152 So. 282; Cottrell v. Southern R.R. Co., 80 Miss. 610, 32 So. 1; Gulf M. Ry. v. Arrington, 107 So. 378; Y. M.V.R.R. v. Beasley, 130 So. 499; Y. M.V.R.R. v. Williams, 114 Miss. 236, 74 So. 835; Y. M.V.R.R. v. Dailey, 157 Miss. 3, 127 So. 576; I.C.R.R. Co. v. Fuller, 106 Miss. 65, 63 So. 265; Davis v. Temple, 129 Miss. 6, 91 So. 689; Davis v. Elzey, 126 Miss. 789, 88 So. 630; M. O.R.R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Young v. Columbus G. Ry., 165 Miss. 287, 147 So. 342.
When there has been a view or inspection of the place or premises by the jury, the court cannot reverse on the evidence if there be any substantial testimony delivered by sworn witnesses in support of the verdict.
S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; National Box Co. v. Bradley, 171 Miss. 15, 157 So. 91; Great A. P. Tea Co. v. Davis, 177 Miss. 562, 171 So. 550; Section 512, Code of 1930; Yorkshire Ins. Co. v. Brewer, 175 Miss. 538, 166 So. 361; Cotton Mill Prod. Co. v. Oliver, 153 Miss. 362, 121 So. 111; Franklin Fire Ins. Co. v. Brewer, 173 Miss. 317, 159 So. 545; Y. M.V.R.R. v. Beasley, 158 Miss. 370, 130 So. 499; Miss. Power Light Co. v. McCreary, 176 So. 165.
The decision of the court in this case, as evidenced by the opinion, establishes new rules as to the weight of evidence and credibility of witnesses, different and contrary to those established and laid down in many prior decisions of this court.
Moore on Facts, secs. 1108-1109; Y. M.V.R.R. v. Beasley, 158 Miss. 370, 130 So. 499; Columbus G. Ry. v. Lee, 149 Miss. 543, 115 So. 782; Y. M.V.R.R. v. Lucken, 137 Miss. 572, 102 So. 393; G.M. N.R. Co. v. Hudson, 142 Miss. 542, 107 So. 369; G. S.I.R. Co. v. Williamson, 162 Miss. 726, 139 So. 601; Section 6125, Code of 1930.
Argued orally by H.D. Minor and Hugh F. Causey, for appellant, and by W.W. Venable, for appellee.
Appellees, Mrs. Jennie E. Lamensdorf and her son, R.G. Lamensdorf, filed suit against appellant, the Yazoo Mississippi Valley Railroad Company, for the death of M. Lamensdorf, husband and father of appellees, which occurred at a railroad crossing where the track crosses highway 61 at Choctaw about two miles of Shaw, Miss.
The declaration charged that appellant negligently failed to keep the crossing in question and the approach thereto in such a condition as to afford a safe and convenient means of travel over same; that appellant negligently permitted houses and trees to remain near the crossing; and failed to sound its whistle or ring its bell in the manner required by statute after observing the peril of the deceased.
The appellant pleaded the general issue, and that the crossing in question was and is a public grade crossing, a part of a public road which traverses it at a right angle; that the statutory Mississippi stop sign was being maintained on the right side of the public road, in plain view of persons traveling thereon; and that the deceased, M. Lamensdorf, on that occasion, drove on said crossing without stopping, looking, and listening, as required by section 6124, Code 1930, and stopped his car on the crossing without alighting therefrom after becoming aware of the approaching train; and that the negligence in so doing caused his death. The highway number 61 crosses the railroad line at right angles, after running parallel thereto for some distance. North of this crossing 408 feet is a railroad trestle 243 feet long, and east of this trestle is a bridge on the highway; 1,290 feet north of the crossing is what is known as the whistling post, which is the point where engineers approaching from the north are required to sound their whistles and ring their bells. On each side of the track there are telephone poles used by the telephone and telegraph companies, which poles are about 165 feet apart. On the east side of the track is a pole a few feet north of the crossing, and on the west side the first pole is about 150 feet north of the crossing. On the west side of the tracks are residences for the section foreman and other workers for the railroad company, and in front of these houses are five trees located 39 feet from the center of the railroad tracks, and the houses and trees are fenced in and maintained by the railroad company. On the east side, 118 feet from the track, is a store operated by a Chinaman. The railroad is practically straight for two miles north of the crossing, and one looking north can see for more than a mile. The accident occurred on August 20, 1936, at about 11 a.m., on a fair day. M. Lamensdorf, the decedent, owned and operated a farm south of this crossing near the village of Choctaw, and on the day of the accident he was traveling north on highway 61, in a Chevrolet sedan, going about 20 miles per hour, and passed two of the witnesses, Mr. and Mrs. Wayne Brock, who had stopped their car about 450 feet south of the crossing. M. Lamensdorf did not stop at the stop sign, or at any point on the highway before reaching the crossing, but continued onto the crossing, and there remained until the locomotive hit the rear of his automobile and damaged the left side of the trunk which was fastened on the rear of his car. The car was turned around, its rear end of the left fender was broken, but none of the glass was broken, and the spare tire on the rear of the car was not damaged.
There are many errors assigned, several of which would call for a reversal; such as permitting the jury to view the scene of the accident after the situation which existed at the time of the accident had been changed, and which view, owing to the changed condition, was unnecessary. As we have previously held, where the view could have been disclosed by photographs, diagrams, and measurements, a view should not be permitted; and because of instructions authorizing the assessment of punitive damages, and because the verdict was contrary to the overwhelming weight of the evidence. The most serious question, however, is whether or not the peremptory instruction requested by the appellant, and refused, should have been granted.
We have given this question great study, and the judges have considered all the evidence in the record, and we have reached the conclusion that the peremptory instruction should have been granted, and, consequently, it is not necessary to discuss any other question.
The case for plaintiff as to liability rests largely upon the testimony of Mr. and Mrs. Brock, who were near the crossing and observed M. Lamensdorf approach the crossing until he was struck and killed. There were many photographs and measurements of the physical condition of the crossing and its approaches. Brock had stopped his automobile to make an adjustment about it when Lamensdorf passed by going twenty miles per hour. Brock was traveling in a model T. Ford truck with his wife, and some distance north he observed M. Lamensdorf drive upon the track and stop, and Brock said he heard the train approaching. He estimated that Lamensdorf was on the crossing about 45 seconds, and that witness heard the train approaching, and saw deceased was trying to shift his gear. Brock stated that the deceased remained on the crossing manipulating his gear and working around his automobile for about three-fourths of a minute before the train hit the car, and that he (Brock) stated to his wife, "Right yonder is a man going to get killed, if he don't mind," and he further testified that he did not hear the train whistle until about fifteen seconds before it hit the automobile, but that he heard the train coming, and that the bell was continually ringing. Mrs. Brock testified that her husband had stopped their truck 140 or 150 yards south of the crossing, and that the deceased drove past them and up on the crossing; that she heard the engine whistle when the engine was on the trestle, which was about 408 feet north of the crossing. She had heard the train coming before the deceased passed them, and heard the whistle blow and the bell ringing before she saw the train, and she said the whistle continued to blow and the bell continued to ring until after the locomotive hit the automobile. She further testified that the train was not running fast when it hit the automobile, and that she saw the deceased manipulating his gear right up until the collision.
Another witness, Fred Mahoney, a plumber, testified that he left Shaw going south on highway 61, which parallels the railroad tracks on the east, and just as the train stopped on account of this accident, he caught up with its rear; that he did not hear the whistle blow or the bell ring as he was not paying any attention to such signals, not having such matters on his mind, and could not state whether such signals were given or not.
Miss Snodie Howard, a school teacher, was also traveling south on highway 61, but she was not paying any attention to the train, but was watching the road. She said as she approached the north end of the road bridge east of the railroad trestle she heard the locomotive give "a long, shrill whistle;" that she looked up and saw the locomotive standing on the crossing, but she turned her eyes away from the crossing to avoid seeing the accident.
There was other evidence offered as to the habits and business ability of the decedent, his earning capacity, and life expectancy.
The appellant introduced its engineer who testified that he began to blow the whistle at the whistling post 1,290 feet north of the crossing, and, at the same time, turned on the apparatus which rang the bell automatically, and that the whistle continued to blow and the bell to ring until the engine passed over the crossing; that he first saw the deceased some twelve or fourteen feet, and he was proceeding to cross the track at the rate of ten or twelve miles per hour, in his judgment, and that the deceased passed out of his view because the engine obstructed his view near the crossing, and that the fireman told him to, in substance, shoot the works, meaning to put on the emergency, which was done, and the whistle was blown and the bell rung.
Pat Mulvahill, the brakeman, testified that the engineer began to blow the whistle and ring the bell at or about the whistling post, and that the whistle continued to blow and the bell to ring until after the car was struck.
Another witness, J.P. Ingram, a cotton gin operator, testified that he was returning from Shaw to his home on the day of the accident, and he heard the whistle blow and thought the engineer was trying to prevent him from trying to cross before the train. He did not notice the bell ringing, but could not say that it was not ringing.
Ethel Ryan, daughter of the section foreman, was at home in the north room of the section foreman's residence, and heard the train blow about 308 feet north of the trestle, but did not notice the ringing of the bell.
Mrs. J.L. Ryan, wife of the section foreman, was at home on the day of the accident and heard the whistle blow north of the crossing.
J.L. Ryan, section foreman, was working on the railroad track; heard the train blow, but was too far from the train to hear the bell ringing.
Will Singleton, a negro, was traveling north in a mule drawn wagon hauling seed cotton to be ginned at Shaw. He heard the whistle blow and it scared his mules, and he grabbed his little boy who was with him and the lines, and he said he saw a car on the crossing, but thought the engineer was trying to frighten his mules.
Mrs. C.P. Cole testified that she had stopped at the Italian's store to buy a Coca-Cola and heard the whistle, but paid no attention to the ringing of the bell, and could not say whether or not it did ring.
It was shown by witnesses that the highway crossing was in good condition; that the gravel was level with the track; and that the approach to the crossing is constructed on about a 9 per cent. grade, and is reasonably safe; that the approach to the crossing on the west side is banked, that is, the center of the road along the outside of the curve is elevated about one and one-half feet higher than the inside of the curve, which is the approved method for constructing curves in highways.
George Webb, a patrolman for the State Highway Department, testified as to the condition of the crossing, as did J.C. Davis, superintendent of the State Highway Department, who had jurisdiction of this and several other crossings, and there is no proof that the crossing was not in a safe condition. It was clear that the appellant was not negligent in maintaining its crossing. A Mississippi stop sign had been duly erected in the proper places, and a person could see the third telephone pole north of the crossing on the east side of the track a distance of approximately 500 feet, and the fifth telephone pole on the west side of the track a distance of approximately 825 feet north of the crossing on the west side of the track. It was shown that when a person is 43 feet west of the crossing in the highway, he can see beyond the trestle, and when standing 29 feet west of the crossing, he can see two water tanks in Shaw and count 19 telephone poles, or a distance of approximately a mile. At a point 27 feet west of the crossing a person, it is alleged, can see a locomotive north of the whistling post and hear its whistle, and, when the jury and court were at the crossing, making observations, late in the afternoon, they could count at least ten telephone poles. After the sun went down, some of the witnesses moved up to a point ten feet west of the crossing, and could see a locomotive more than a mile north of the crossing. There was testimony showing that the trees in front of the section foreman's house had been trimmed after the accident and before the jury went to the scene thereof. The view by the jury being unauthorized, the verdict cannot be aided thereby.
It will be observed from the statement of the facts that the train was approaching from the north at the time Lamensdorf drove upon the track.
The evidence of persons who testified affirmatively shows that the whistle was blown and the bell rung continuously before reaching the crossing, and this is corroborated by other witnesses.
The estimate of the witness Brock was that there was, approximately, 45 seconds from the time Lamensdorf stopped on the crossing until he was struck by the engine; that he (Brock) saw the train about the trestle, which was 408 feet north of the crossing. This trestle is shown by other evidence to be 243 feet. Mrs. Brock estimated the time to be about 3 seconds.
All the testimony shows that the train, on the occasion in question, was going from 35 to 40 miles per hour, and that when the emergency air brake was put on, the train began to slow down, or "buckle" as some witnesses expressed it. It was shown that after the train stopped the thirteenth car behind the engine stopped at the crossing, and that the average car is 36 feet long, making about 468 feet to be the length of the space the train had gone below the crossing. The train was traveling at the rate of about 52 feet per second. Taking the distance as agreed to by all the witnesses, when M. Lamensdorf was seen to stop upon the track, and placing the engine at the north end of the trestle, there would be about ten seconds by actual measurement.
The testimony of witnesses is to be taken, if reasonably possible, and considered on the theory that all are honest and trying to tell the truth, and under this theory, it is manifest that after M. Lamensdorf's position of peril was seen, it would have been impossible to have stopped the train to avoid the accident. Ordinarily, persons charged with duty, if they testify, are trying to tell the truth, and are more to be depended on than those persons who are not charged with any duty in reference to the matter. As against this assumption, we are met with the counter fact that ordinarily a man seeks to justify his own act, or to deny negligence; but where such witnesses are supported by corroborating affirmative testimony of other disinterested witnesses, and the only testimony in opposition is negative testimony of persons who did not hear the whistle or the bell, their attention being elsewhere, such negative testimony is insufficient to overturn affirmative testimony.
It is also a fact that vision is a more dependable fact than hearing when applied to a situation as exists in the case at bar. This is discussed in Moore on Facts, sections 712, 733, and 938.
We are mindful of the principle that where there is conflict in the evidence this matter is for the jury, and we also have in mind in considering this case the principles announced in the case of Davis, Director General of Railroads, v. Temple, 129 Miss. 6, 91 So. 689, and we are always reluctant to hold that a jury verdict is not supported by the evidence, especially when approved by a trial judge. We are also mindful of our duty to review this testimony and scrutinize with care all cases wherein verdicts are rendered upon unsatisfactory evidence; but the duty is upon us to determine judicially, from all the facts and circumstances in this case, whether the jury had sufficient evidence before them to uphold their verdict.
After a careful consideration of the facts of this case, we are of the opinion that the evidence was not sufficient to support the verdict, and, consequently, the peremptory instruction requested by the appellant should have been granted, and the judgment of the court below will, therefore, be reversed, and judgment rendered here for the appellant.
Reversed and judgment for the appellant.
The case for appellees is built upon, and must stand, if at all, upon the testimony of the witness Brock that the deceased was stalled upon the railroad track, or partly thereon, for a period of 45 seconds, within which time appellant could easily have stopped its train before reaching the crossing. That estimate by Brock cannot be reconciled with the surrounding facts as shown by all the other witnesses; and weighing it in the scales of all ordinary human experience and observation, as it is our duty to do, it must be pronounced as incredible as a reasonable probability. It is possible, as almost anything is possible, that the length of time did intervene as Brock estimates, but we repeat that as a probability it is incredible; and we suppose it is not now necessary to more than briefly refer to what we have so often heretofore said, to-wit, that to present a possibility, rather than a believable probability, is not a sufficient basis for a verdict and judgment. Berryhill v. Nichols, 171 Miss. 769, 773, 158 So. 470; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 522, 160 So. 277; New Orleans, etc., R. Co. v. Holsomback, 168 Miss. 493, 495, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 153, 152 So. 842.
The scintilla of evidence rule has been discarded in nearly all jurisdictions, and is not recognized in this state; but verdicts must be based upon substantial evidence and that evidence must be reasonably believable. Whatever a jury here or there might chance to believe, we must require that the evidence upon which they act must be within state-wide legal standards, and one of these, as said, is that the evidence must be substantial and must be reasonably believable. Common experience and observation among all sensible men, who are impartial and without interest upon the issue, can lead to but one reasonable or substantial conclusion in respect to estimates of short periods of time, especially when that estimate, formed in a period of excitement, is in terms of seconds. So it is that all must agree with what the law books say on that subject: "Estimates of the duration of short periods of time into which such experience is crowded are notoriously inexact and are apt to be excessive, especially if the mind was in a state of anxiety or expectation, and a witness who assumes to measure time with accuracy under such circumstances discredits himself." 23 C.J., p. 37, and cases there cited. See, also, 2 Moore on Facts, p. 992, et seq. In this case, for instance, Brock estimated the time of the train from the bridge to the crossing at 15 seconds, while his wife said it was 3 seconds, and neither of them had it right.
If we were to accept the estimate of 45 seconds by Brock as the duration of time that deceased was stalled on the track and discard all the other evidence, and allow this single estimate as sufficient in dependable substance to support a verdict, it would be to say that we will accept as substantially and controllingly dependable that which is declared by the authorities to be notoriously inexact and unreliable, and, moreover, would convict this train crew as bent upon homicide, and the deceased upon suicide, or at least that he was wholly indifferent to the most compelling motive or instinct which, under all circumstances and in every eventuality, incites men to action in their own behalf, namely, the instinct of self-preservation. Is it reasonably credible or believable that for 45 seconds the deceased would have sat in his stalled car, stalled on the railroad track, with an oncoming train in full view, with its whistle sounding alarm and its bell ringing, and with every other person aware of its approach, that he simply remained there until killed, when within much less time than 45 seconds he could have stepped out of his car to a place of safety only a few feet away? Appellees attempt to answer this question by saying that the deceased was frozen to his seat by fright, but in this they take resort to nothing but conjecture, there not being a word of fact in the evidence which would give probative support to any such contention.
The verdict is not supported by substantially dependable evidence, and we adhere to our original ruling so holding.
Suggestion of error overruled.