Opinion
No. 31538.
January 28, 1935. Suggestion of Error Overruled March 11, 1935.
1. APPEAL AND ERROR. Trial.
In action for damages from fire set by locomotive, where evidence was sharply conflicting, instruction authorizing verdict for railroad if evidence were evenly balanced or if jury were uncertain as to how fire was set out and who set out fire held reversible error.
2. EVIDENCE.
In action for damages from fire set by locomotive, plaintiff need not prove his facts beyond doubt, but need only prove ultimate issue by preponderance of evidence.
3. TRIAL.
Instructions are to be considered together, and technically erroneous instructions will not authorize reversal, where instructions may be harmonized to present fairly correct statement of applicable law.
4. TRIAL.
Instruction erroneously authorizing verdict for defendant if jury were in doubt on ultimate issue held not cured by instructions entitling plaintiff to recover if testimony preponderated in his favor, since result of harmonizing instructions would be that preponderance of evidence is such proof as removes all doubt.
APPEAL from the Circuit Court of Monroe County.
Leftwich Tubb, of Aberdeen, for appellant.
In a proceeding under either statute, section 3422 or section 6153, Code of 1930, if the proof discloses that the fire originated in or upon the roadbed or right-of-way, that shortly before a locomotive had passed along and soon thereafter the fire sprang up in or upon the roadbed or right-of-way, and that no fire was seen nearby at any time shortly before, then a strong presumption arises that the fire was communicated from the defendant's locomotive engine or train of cars; a prima facie case is thus made which will justify the court and the jury in drawing the conclusion that the fire originated or was communicated by the defendant's locomotive engine or train of cars and that under this proof the plaintiff is entitled to recover.
L.N.O. T. Ry. Co. v. N.J. C.R.R. Co., 67 Miss. 399; Tribbette v. I.C.R.R. Co., 71 Miss. 212; A. V.R.R. Co. v. Barrett, 78 Miss. 432; I.C.R.R. Co. v. Thomas, 68 So. 773, 109 Miss. 536; Y. M.V.R.R. Co. v. Washington et al., 73 So. 879, 113 Miss. 105; Folsom v. I.C.R.R. Co., 77 So. 604, 116 Miss. 561; Liverpool, London Globe Ins. Co. v. Kosciusko S.E.R. Co., 83 So. 305, 121 Miss. 258.
The defendant railway was grossly negligent in permitting highly combustible matter to accumulate on its right-of-way.
51 C.J. 1159-61, secs. 1271-72; Tribbette v. R.R. Co., 71 Miss. 235; Central of Ga. Ry. Co. v. Graves (Ala.), 107 So. 716; 51 C.J., sec. 1271.
The granting of charge number six was a most flagrant reversible error. This instruction is as follows: "The court further instructs the jury for the defendant, that if, after consideration of all the evidence in the case the evidence for the plaintiff and the defendant is evenly balanced or if you are uncertain or in doubt from the evidence in the case how the fire was set out and who set out the fire which was communicated to the lands of the plaintiff, then in either event it is your sworn duty to return a verdict for the defendant."
This charge has been repeatedly condemned by this court.
Gentry v. Gulf Ship Island R. Co., 109 Miss. 66; Stevenson v. Yazoo M.V.R. Co., 112 Miss. 899; Mardis v. Yazoo M.V.R. Co., 115 Miss. 734.
I.L. Sheffield, of Fulton, for appellee.
As to fires all along the railroad the superintendent testified that they had no such fires and fires at other times and by other engines under other management are not admissible.
Tribbette v. Illinois Central Railway Co., 13 So. 899; Alabama V. Ry. Co. v. Aetna Ins. Co., 35 So. 304.
One isolated instruction might appear to be erroneous but this court has repeatedly held that the instructions as a whole are to be considered and if as a whole they announce the law properly then no error is done.
Instruction number six when considered with all of the other instructions merely announces to the jury that having before them all of the evidence in the case unless they are convinced that the fire was set out by the defendant that they can not return a verdict against it. Read alone, it might seem to announce a rule not applicable and one which alone would probably be condemned but in connection even with instruction number five, it announces the law clearly and plainly.
Appellant, plaintiff in the trial court, brought an action against appellee railway company charging that a locomotive of the defendant set out a fire which was communicated to the lands of appellant to the great damage of the timber thereon. The case in behalf of the plaintiff was made out by circumstantial evidence, as is usual in such cases, and the evidence was sufficient to sustain a verdict in plaintiff's favor had the jury so decided. The circumstances relied on by plaintiff were sharply controverted by the proof introduced by the defendant, and therefore the case as developed was one to be decided by the jury upon stoutly disputed issues of fact.
In that situation the court, at the request of the defendant, gave the following instruction: "The court further instructs the jury for the defendant that if after consideration of all the evidence in the case the evidence for the plaintiff and the defendant is evenly balanced or if you are uncertain or in doubt from the evidence in the case how the fire was set out and who set out the fire which was communicated to the lands of the plaintiff, then in either event it is your duty to return a verdict for the defendant." This instruction is obviously erroneous, and, under the state of the evidence, amounted practically to a peremptory charge for the defendant. The case is an ordinary civil action, wherein the plaintiff is not required to prove his facts beyond doubt, but only to prove the ultimate issue by a preponderance of the evidence. An instruction in substantially the same language and in a similar case was condemned as reversible in Mardis v. Railroad Co., 115 Miss. 734, 740, 76 So. 640, and in previous cases.
Appellee argues that the error was cured by other instructions which correctly announced that the appellant was entitled to recover if the evidence preponderated in his favor. Instructions are to be considered together; and, although there may be one or more, which, when separately considered, would be technically erroneous, if nevertheless they may be harmonized with the other instructions in such a manner that it may be safely said that the harmonized result has presented a fairly correct statement of the law applicable to the case, the technical errors will not reverse the verdict and judgment. If we should attempt to harmonize the quoted instruction with the other instructions, we would have the result here that the court has told the jury that the plaintiff would be entitled to recover if the testimony preponderates in his favor, but that what is meant by a preponderance of the evidence is such weight and quality of proof as shall remove all uncertainty and doubt. Manifestly, the instructions are conflicting or contradictory, and are not capable of being harmonized, as was held in Ellis v. Ellis, 160 Miss. 345, 360, 134 So. 150, which is closely in point upon this question.
There are nineteen other assignments of error, and, since the case is to be retried, we will rule upon the more prominent of the assignments but without comment. Instructions 3 and 4, granted at the request of defendant, should not have been given. The photographs offered by plaintiff should have been received in evidence. The rebuttal testimony of the witnesses, Kentucky Davis and Ben Parish, should have been admitted. The court was correct in excluding the conclusions or statements of opinion made by the agent of the defendant in the course of an attempt to effect a settlement of the case.
Reversed and remanded.