Opinion
No. 27669.
February 18, 1929.
1. RAILROADS. Travelers on highway have right to insist that train signals be given at crossing, as required by statute.
Travelers on highway have right to insist that statutory train signals be given at crossing, not only that they may be warned thereby to keep off track, but that they may extricate themselves and their property from position of danger.
2. RAILROADS. Where, if train signals had been given, traveler might have avoided danger of injury at crossing, failure to give signals may be considered proximate cause of injury or death.
Where, if train signals had been given, traveler on highway by virtue of warning might have avoided danger of injury at crossing, failure to give statutory signals may be considered as proximate cause of injury or death that results.
3. EVIDENCE. It is common knowledge that automobile can be quickly turned to right or left without regard to brakes.
Court and juries may take knowledge of fact that automobile can be quickly turned to right or to left without regard to brakes.
4. APPEAL AND ERROR. On appeal from judgment in second trial, supreme court is confined to present record of evidence.
On appeal from judgment in second trial, supreme court is, as to facts, confined on appeal to present record of evidence.
5. APPEAL AND ERROR. Doctrine of law of case does not apply to recitals of fact in opinion on former appeal.
Doctrine of law of case does not apply to mere recitals of fact in an opinion on a former appeal, since supreme court is not constitutionally authorized to make original finding of fact.
6. COURTS. All parts of opinion of court must be read together.
All parts of opinion of court must be taken and read together, and it is not permissible to detach one expression from others on same point.
7. APPEAL AND ERROR. Supreme court cannot reverse, where there is sufficient evidence to justify conclusion of jury.
Supreme court has no rightful authority to reverse, where there is sufficient evidence to justify conclusion of jury.
8. TRIAL. Circuit court can give no instruction not requested.
Circuit court can give no instruction that is not requested.
9. APPEAL AND ERROR. In civil cases, trial judge cannot be put in error with respect to asserted omission when he is prohibited from acting.
In civil cases, trial judge cannot be put in error with respect to asserted omission when he had no power to act and was prohibited from acting.
10. DEATH. Twenty thousand dollars to widow and son for death of decedent thirty-four years old, earning two thousand seven hundred dollars per year, held not excessive.
Verdict for twenty thousand dollars to widow and son for death of man thirty-four years of age, in good health, a college graduate, earning two thousand seven hundred dollars per year as teacher, held not excessive, even though both he and railroad company were guilty of gross negligence when decedent was struck by train.
APPEAL from circuit court of Marion county, HON. J.Q. LANGSTON, Judge.
Action by Lucille Simmons and others against the Gulf Ship Island Railroad Company. From the judgment, defendant appeals. Affirmed.
T.J. Wills and Chas. N. Burch, for appellant.
It will be noted that the only reason the court refused to enter judgment for the railroad company, on reversing this case on the former appeal, was that it said that if the signals had been given it is entirely probable that Simmons could have removed himself and his children to a place of safety before the arrival of the train at the crossing.
The law is that if Simmons could not have removed himself and his children from the car into a place of safety then the blowing of the whistle or the ringing of the bell would not have averted the accident and injury and the failure so to do would not be a contributing proximate cause to Simmons' injury and death. 22 R.C.L. 182.
The burden of proving, as a matter of fact, that the failure to comply with the statute caused or contributed to the injury or the burden of producing evidence from which a jury may infer that the failure to comply with the statute caused or contributed to the injury rests upon the plaintiff. I. G.N.R.R. Co. v. Mathews Co., 158 S.W. 1048; T. P.R.R. Co. v. Moody, 169 S.W. 1058; T. P.R.R. Co. v. Marrujo, 172 S.W. 588. The plaintiff in this case, did not meet the burden of showing that a sufficient time elapsed from the time that Simmons' car stopped on the track until he was struck by the oncoming train and killed, to have enabled him to have extricated himself and his children from the dangers in which they were placed. On the other hand the plaintiffs proved by their witnesses Reddick and Crews, and the only eyewitnesses who testified in the case as to what happened, that Simmons did not have time to get out of the car and get his children out from the time his car came to a stop until he was struck by the train. See, also, L. N.R.R. Co. v. Gilmore, 21 L.R.A. (N.S.) 723; Great Northern R.R. Co. v. Wiles, 240 U.S. 444, 36 Sup. Ct. Rep. 406; Grand Trunk R.R. Co. v. McAlpin, Am. Eng. Ann. cases, 1914A, 532; Davis v. Pere Marquette R.R. Co., 216 N.W. 424; Stroud v. C., M. St. P. Co., 243 P. 1089; Haarastrich v. Oregon Short Line Co., 262 P. 100; Hickey v. Mo. Pac. R.R. Co., 8 F.2d 128.
It is assigned as error that the court failed to charge the jury as to the measure of damages, or the law by which they were to be guided in fixing damages if they found for the plaintiffs. The law is well settled that where no charge whatever is given upon a vital question or issue in the case, it is reversible error. Thompson on Trials, par. 1472; Houston T.C.R.R. Co. v. Buchanan, 84 S.W. 1073; Citizens St. R.R. Co. v. Burke, 40 S.W. 1085; Western Md. R.R. Co. v. Martin, 73 A. 267; Coccora v. Vicksburg Light Traction Co., 126 Miss. 713, 89 So. 257.
The court correctly instructed the jury that the deceased Simmons was guilty of gross negligence. The court further instructed the jury that the plaintiffs would not be entitled to recover full damages if they were entitled to recover at all. The jury, however, refused to yield to this instruction of the court, and returned a verdict for twenty thousand dollars. When the present worth of an annual earning capacity, where money is worth six per cent is taken into consideration, twenty thousand dollars would be full and complete compensation for the plaintiffs had the deceased been free from negligence altogether. The failure of the jury to yield to the instruction of the court and the size of the verdict indicate that they were controlled by passion and prejudice against the railroad company. Y. M.V.R.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Tendall v. Davis, 129 Miss. 30, 91 So. 701.
Henry Mounger, Jr., Davis Conner and Hall Hall, for appellees.
Counsel for appellant contend that the train was immediately upon Mr. Simmons when he stopped on the railroad track and that for this reason the giving of a signal could not have done him any good. This assumption of counsel is not correct. Mr. Cruise testified that the train was not in sight when he and Simmons stopped. It will be borne in mind that upon the hill where Simmons bumped Cruise's car the track can be seen for a considerable distance in the direction from which the train was coming, but this distance decreases as a person approaches the track. It is positively shown that the train was not in sight when Simmons stopped on the track, but if we should concede for the sake of argument that the train was very near at hand, as counsel for appellant have argued, then we submit that Mr. Simmons was still entitled to the signals under the doctrine of last clear chance, because if the signals had been given three hundred yards away he would have heard them and would have seen the train, and instead of bringing his car to rest at a standstill upon the railroad track he would have had ample opportunity in descending the hill towards the track to have turned his car into the ditch or embankment, either to the right or to the left, and in that manner would have kept himself and his children off the railroad track from in front of the train. Grand Trunk R.R. Co. v. Ives, 36 L.Ed. 485; C. G.R.R. Co. v. Lee, 115 So. 782.
We find no fault whatever with the rule cited by appellant, as announced in 22 R.C.L. 182. We agree that the failure to comply with the statute as to giving signal by bell or whistle upon approaching the crossing must in some manner contribute to the injury, or else the railroad company is not liable. This is the rule upon which our case is based, and we submit that it is shown beyond any kind of doubt that the signal was not given and that if it had been given Mr. Simmons would have had twenty seconds additional warning which would have been ample time for him to have saved himself and his baby, and that consequently the failure to give the signal was the proximate cause of his injury and death.
Appellant argues that the lower court erred in failing to charge the jury as to the measure of damages. No instruction on the elements of damages was asked for and none was refused by the court. It is well settled in Mississippi that the judge is not authorized to instruct the jury except upon request. Sec. 591, Hem. 1927 Code; Bacon v. Bacon, 76 Miss. 458, 24 So. 968; Y. M.V.R.R. Co. v. Messina, 109 Miss. 143, 67 So. 963; Pringle v. State, 108 Miss. 802, 67 So. 455; Bangs v. State, 61 Miss. 363; Johnson v. State, 78 Miss. 627, 29 So. 515; St. L. S.F.R.R. Co. v. Moore, 101 Miss. 768, 58 So. 471; Anno. Cas. 1914B 597; Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459; Y. M.V.R.R. v. Lucken, 137 Miss. 572; 102 So. 393; A. V.R.R. Co. v. McGee, 117 Miss. 370, 78 So. 296; G. S.I.R.R. Co. v. Saucier, 104 So. 180; James v. State, 106 Miss. 353, 63 So. 669; Dixon v. State, 106 Miss. 353, 64 So. 468; Akroyd v. State, 107 Miss. 51, 64 So. 936.
The last point argued by counsel for appellant is that the verdict in this case is excessive. The record shows without conflict that the deceased was thirty-four years of age, that he was a college graduate, that he was engaged in teaching school and was earning two thousand seven hundred dollars per year from that source, and in addition thereto that he owned a farm to which he devoted a part of his time, and also looked after a gin in which he owned an interest. While his income from the two latter courses is not revealed by the record, we think it might be safely assumed that deceased's earnings were considerably in excess of three thousand dollars per year. The record shows that he was in good health, that he worked regularly, that he did not dissipate and that he was kind and considerate to his family and devoted his time and his earnings to their welfare. Deceased had a life expectancy of around thirty years and from his earnings was apparently spending two thousand dollars per year or more upon the members of his family other than himself, and this loss of his earning capacity and expenditures on his family alone would amount to approximately sixty thousand dollars; that this figure does not take into consideration any damage whatever to the plaintiffs on account of the loss of the society and companionship and protection of the deceased. When these elements are figured it is manifest that for the death of a man of this type, a married man with a wife and children dependent upon him, and who by his life and conduct was a source of joy and pride to them, a verdict for seventy thousand dollars would certainly be permitted to stand if the deceased were not guilty of any negligence necessitating that the damages should be diminished. On the first trial of this case a verdict for thirty thousand dollars was rendered by the jury, and on the second trial from which the present appeal is prosecuted, the jury returned a verdict for twenty thousand dollars. It is clearly apparent from this verdict that the jury did charge against the deceased whatever negligence may be attributable to him, and did diminish the damages in accordance therewith. The verdict appealed from shows that the jury were not moved by passion and prejudice in fixing this amount, but rather that they did follow the instructions of the court and did reduce the amount of damage which otherwise would have been awarded if the plaintiffs had been permitted to recover full damages for the death of the deceased.
While there is no fixed rule of law as to what amount of verdict the court will permit to stand, because the recovery in each case must depend upon the facts, nevertheless our court recognizes as one criterion the amount of recovery permitted in other cases of a similar nature, and we desire in this connection to call attention to a few verdicts which our court has permitted to stand in recent years. A. V.R.R. Co. v. Kelly, 88 So. 707; I.C.R.R. Co. v. Causey, 63 So. 336; G S.I.R.R. Co. v. Boone, 82 So. 335; S.H. Kress Co. v. Markline, 77 So. 858.
This case was before the court at the March, 1928, term as the result of a former trial, and the opinion delivered in reversing that judgment is found in 150 Miss. 506, 117 So. 345. The general situation is well and clearly set forth in that opinion. It is evident, however, upon a complete examination of the record now before us, which is to say, the record of the second trial, that much of the details of the facts then before the court are not shown by the evidence in the present record. None of the train crew testified in the present case, and several features of the evidence respecting measurements, distances, grades, the line of vision, and the obstructions or want of obstructions as to vision, and many other particulars of the actual physical situation, were not so fully placed before the jury which heard this, the second trial, as compared with the full developments of all these facts in the first trial — this is apparent when this present record is compared with the statement of the facts in the former opinion.
But it appears clearly enough in this present record that the appellees' decedent approached the railroad crossing, going south down grade on the public highway, driving an automobile with defective brakes, and, when about fifty feet from the railroad track, he bumped into the rear of another automobile going in the same direction, which latter automobile had at the time come nearly to a stop, because of the approach of a third car going north. The impact of the decedent's car with the car ahead of him was sufficient to accelerate the speed of the car thus bumped into and to cause the latter to run on down the grade to the railroad track, and beyond that point a few feet to the beginning of the up grade on the south side of the said track, at which latter point the car ahead came to a stop. During this time, the decedent's car had been following immediately behind, until the car ahead stopped as aforesaid, which then left the decedent's car blocked on the railroad crossing, the passageway being very narrow at that point. Almost immediately after the two automobiles thus came to a stop, with the decedent's car on the track as aforesaid, a passenger train of appellant came around an adjacent curve in the railroad track, running down grade, and consequently without much noise, at a speed of approximately thirty miles an hour, and appellees' decedent was killed.
All the witnesses testify to the fact, and it is undisputed even by inference that the statutory signals were not given by appellant as its train approached this public crossing, and all agree, or substantially agree, in their testimony that the locomotive whistle was not sounded nor the bell rung before the time when the train had arrived at about two rail lengths or about sixty or seventy feet from the said crossing; so that the statutory warning was not given until it was too late to be of any effective avail, and so that at that late moment it had as well not been given at all.
The statutory duty of appellant was "to cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway, and the bell shall be kept ringing or the whistle shall be kept blowing continuously until said crossing is passed." The law as stated in the former opinion, and in all the opinions of our court dealing with the aforesaid statute, is that travelers on a highway have a right to insist that these signals be given, not only that they may be warned thereby to keep off the track, but that they may extricate themselves and their property from a position of danger before the arrival of the train; and further that, if it would be a reasonable conclusion upon all the facts in the case that, had the signals been given, the traveler by virtue of the warning might have avoided the danger of injury, then the failure to give the statutory signals may be considered as the proximate cause of the injury or death that results.
Applying these rules of law to the case shown by this record, it would appear that only one result can reasonably follow. Automobiles are of such common use that courts and juries may take knowledge of the fact, so obvious to ordinary observation, that such a vehicle can be quickly turned to the right or to the left, and this, too, without regard to the brakes. If the statutory signals had been given continuously by this train for three hundred yards, the inference is reasonable that appellees' decedent would have heard them, and would thereby have been made aware of the near and dangerous approach of the train, and that, acting upon the dominant instinct of self-preservation, he would instantly have turned his car into the ditch or the embankment either to the right or to the left, and thus would have escaped. There is nothing whatever in this record that militates against that conclusion as a fair and reasonable one on all the facts. And there is double assurance here in this that, if the signals had been given the driver of the car ahead, the one which was bumped into would also have heard them, and would have taken immediate action to turn his car before reaching the crossing, and thus would have blocked off the car of appellees' decedent.
We are aware that the court in the former opinion said: "It is undoubtedly true that the giving of the statutory signals would not have prevented Simmons' car from going onto the track and becoming blocked thereon," and we have not failed to note that the appellant apparently bottomed its chief defense in the second trial, and in its present argument here, upon the quoted expression. Whatever there was in the evidence on the former trial that induced the court to use that language is wanting in the evidence that was placed before the jury in this second trial; and as to the facts we are, on this appeal, confined to the present record of the evidence. The doctrine of the law of the case does not apply to mere recitals of fact in an opinion on a former appeal, 4 C.J. 1107; Mattingly v. Pennie, 105 Cal. 514, 39 P. 200, 45 Am. St. Rep. 88, for the very sufficient reason that this court is not constitutionally authorized to make an original finding of fact. It is a fundamental principle under our jurisprudence that the function of original fact finding is one that is to be exercised only by juries, unless waived, and by chancellors. That the above-quoted expression cannot be relied on as the law of the case may be illustrated thus: Suppose the appellant had requested, and the judge on this second trial had given, the jury an instruction in the words quoted, would it not have been plain error as a charge upon the weight of the evidence — even more, would it not have been a direction by the judge to the jury to find a certain way on the facts when it was the separate and inviolable privilege and duty of the jury to make their own findings on these facts? Moreover, the opinion of a court is entitled to that same comprehensive treatment that belongs to other compositions or to instructions to juries and the like — all parts must be taken and read together. It is not permissible to detach one expression from others on the same point. Looking, therefore, further along in the former opinion of the court, we find that it also said: "In the case at bar, there was no train in sight or known to be approaching when Simmons went upon the track on a public highway, and if the customary signal had been given, he might have avoided the dangerous situation in which he was entrapped." The jury in this second trial evidently came to that very conclusion, and, as we have already in effect said, we think the jury was right in so concluding. But, even if we thought them wrong, there being sufficient evidence to justify their conclusion, we would have no rightful authority to reverse.
There is no instruction in the record informing the jury of the rules of law as to the measure of damages. It is also true that no such instruction was asked. Appellant complains, nevertheless, that the absence of such an instruction is error. It is so thoroughly understood and so well settled that, under our procedure, the circuit judge can give no instruction not requested, that we refrain from citing the statute and the numerous decisions on the point; and it is equally well settled that in civil cases the trial judge cannot be put in error with respect to an asserted omission when he had no power to act, and when in fact he is prohibited from acting. The correct rule in such a case is stated in 2 Thompson on Trials (2 Ed.), section 2338: "It is a rule in the law of procedure, recognized and enforced in all jurisdictions, that, in civil cases, the judge is not bound to give his opinion to the jury upon any matter of law arising upon the evidence, unless requested to do so by one of the parties. Where no such request is preferred, the presumption is that the jurors are acquainted with the rules of the law applicable to the case, and the failure to instruct them cannot be assigned for error."
The appellant complains that the verdict is excessive. The court instructed the jury that the actions of appellees' decedent in driving down to the crossing in the manner that he did was gross negligence, and further instructed the jury that, if they should find for the plaintiff, they must not allow full damages, but only such as would be justified by comparison with the negligence of appellant. The jury allowed twenty thousand dollars. It was shown by the evidence that the decedent was a young man thirty-four years of age, in good health, a college graduate, earning steadily in his profession as a teacher two thousand seven hundred dollars per year, was of good habits, industrious, and devoted to his family. Applying ordinary knowledge and common observation, his life expectancy and earnings during that expectancy would be more than forty thousand dollars, leaving aside any other element of damage. If his negligence was gross, so was that of the appellant. The verdict is therefore not excessive.
Affirmed.