Summary
In Aultman, for example, the Mississippi Supreme Court approved a last clear chance instruction that the train engineer must have seen, known, and appreciated the peril of the bus in time to have stopped the train before the collision.
Summary of this case from Wright v. Standard Oil Company, Inc.Opinion
No. 31636.
April 8, 1935. Suggestion of Error Overruled May 20, 1935.
1. TRIAL.
Case held triable at return term of circuit court, where summons was served July 21 and made returnable August 20, as against contention that both day of service and day of return had to be excluded in determining whether there was service of process for thirty days before return day (Code 1930, secs. 474, 575, 1397).
2. TRIAL.
Under declaration containing two counts leading to same liability, general verdict for plaintiff is sufficient if sustained under either count.
3. RAILROADS.
Whether engineer exercised reasonable care to prevent collision between train and bus at crossing after he realized the danger held for jury.
4. RAILROADS.
Engineer must have used every reasonable means to prevent collision between train and bus at crossing when he saw and appreciated the peril.
5. NEGLIGENCE.
"Emergency doctrine" is that where one is confronted with a sudden emergency, without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as would be required of him if he had time for deliberation.
6. NEGLIGENCE.
Arising of emergency does not relieve one from obligation of exercising ordinary care.
7. RAILROADS. In action for wrongful death of child in collision between school bus and train at crossing, instruction on emergency doctrine held not erroneous.
Instruction recited that if bus approached crossing as train approached it, and driver stopped and then started upon crossing, thereby placing child in a position of peril of which she and driver were ignorant, and engineer saw bus, and realized danger of a collision, and appreciated the peril in time to have stopped train before killing child, but negligently failed to exercise reasonable care to stop, and by exercise of such care could have stopped, then jury should return verdict for plaintiffs and against railroad and engineer.
8. EVIDENCE.
Engineers who testified that they had had experience in operating locomotives of character of locomotive involved in case, and that they were familiar with the surrounding conditions, held qualified as experts to give their opinions that, running at speed of about twelve miles an hour, train ought to have been stopped before it reached crossing where it collided with bus.
9. JURY.
Where interest of two parties is identical, they are considered as one party under statute allowing each party four peremptory challenges (Code 1930, sec. 581).
10. JURY.
In action against railroad, engineer and bus driver for wrongful death of child in collision between school bus and train, allowing railroad and engineer four peremptory challenges jointly held not error, since their interest was identical, they being jointly and severally liable (Code 1930, sec. 581).
11. APPEAL AND ERROR.
Error, if any, in ruling allowing two defendants four peremptory challenges jointly, held not prejudicial where defendants failed to exhaust challenges allowed them (Code 1930, sec. 581).
12. TRIAL.
In action against railroad, engineer, and bus driver for wrongful death of child in collision between school bus and train, requiring railroad to present its evidence before that for bus driver was presented held not error.
13. APPEAL AND ERROR.
Order in which trial shall be conducted, where there are several defendants, is largely in discretion of court, whose ruling is not reversible unless there is abuse of discretion resulting in harm.
14. TRIAL.
In absence of statute providing otherwise, court may exercise reasonable discretion in limiting time of argument to jury, and, if counsel desires to complain of shortness of time allowed, he should consume time allotted, and, if he cannot complete his argument, should except to refusal of court to allow him additional time.
15. APPEAL AND ERROR.
In action against railroad, engineer, and bus driver for wrongful death of child in collision between school bus and train, allowing railroad and engineer jointly the same time as was allowed to plaintiffs for argument to jury held reversible error, where proper course to complain of shortness of time allowed was not pursued.
16. RAILROADS.
Driver of bus need not get out of bus and look and listen for approaching train before entering upon crossing (Code 1930, sec. 6124).
APPEAL from circuit court of Jefferson Davis county.
HON. HARVEY McGEHEE, Judge.
Action by H.B. Aultman and others against the Mississippi Central Railroad Company, one Evans, and another. From a judgment in favor of plaintiffs, named defendants appeal. Affirmed.
Brady, Dean Hobbs, of Brookhaven, for appellants.
This cause was not properly triable at the term to which it was made returnable and the judgment must be, for that reason, reversed and the cause remanded.
The writ of summons from the circuit court, as against this appellant, was returnable on the "Third Monday of August, A.D. 1934, the same being the 20th day of said month." The writ was served upon it on the 21st day of July, 1934.
Section 575, Code of 1930.
Continuance was a statutory right under Section 575, Code of 1930.
23 C.J. 109-110; Maury et al. v. Commercial Bank, 5 S. M. 41.
Sections 474 and 575, Code of 1930, stand together.
Appellees submit that the words employed in Sections 474 and 575 should be given their usual, ordinary and popular signification.
Green v. Weller, 32 Miss. 650; Koch v. Bridges, 45 Miss. 247; Yerger v. State, 91 Miss. 802, 45 So. 849; Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Warburton-Beacham Supply Co. v. Jackson, 151 Miss. 503, 118 So. 606; Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450, 62 A.L.R. 999; Peeler v. Peeler, 68 Miss. 141, 8 So. 392.
Section 575, Code of 1930, is a part of the chapter on circuit courts. It is not a process statute. It was not exacted for that purpose. It deals only with questions of pleading, issues of fact, and trial. Sections 474 and 575, Code of 1930, stand upon their own combined independent footing, to the exclusion of every other chapter and of every other statute, forming a part of Chapter 12, entitled "Circuit Courts."
In so far as the motion for a continuance is concerned, the question turns upon the meaning of the words — "has been personally served with process for thirty days before the return-day."
26 C.J. 791.
The statutory phrase — "for thirty days before the return-day" — means to the extent, number, quantity, and amount of, and during, through, throughout, and during the continuance of, thirty days prior to or preceding the return-day, and not including the return-day.
17 R.C.L. 1131; Carter v. Henry, 87 Miss. 411, 39 So. 690; Pannell v. Glidewell, 146 Miss. 565, 111 So. 571.
In the absence of any statutory provision governing the computation of time, the authorities are uniform that, where an act is required to be done a certain number of days or weeks before a certain other day upon which another act is to be done, the day upon which the first act is done is to be excluded from the computation, and the hole number of days or weeks must intervene before the day fixed for doing the second act.
Ward v. Walters, 63 Wis. 44, 22 N.W. 844; 46 C.J. 1099; 59 C.J. 1001-2-3; Green v. Weller, 22 Miss. 650; Millsaps College v. Jackson, 136 Miss. 795, 101 So. 574; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; Street v. Commercial Credit Co., 281 P. 46, 67 A.L.R. 1549.
Section 575, Code of 1930, makes it a condition precedent to a trial on the merits, without a defendant's consent, that "the defendant has been personally served with process for thirty days before the return day."
Nixon v. State, 2 S. M. 497, 41 Am. Dec. 601.
The requirement of thirty whole days stands as a unit, stands as an entirety. While each day contributes its part toward making up the whole, it is the whole that controls, and the whole that is required.
O'Quinn v. State, 131 Miss. 511, 95 So. 513; Carter v. Henry, 87 Miss. 411, 39 So. 690, 6 Ann. Cas. 715; 17 C.J. 1131; Nixon v. State, 2 S. M. 497, 41 Am. Dec. 601; H. H. 667, sec. 15; Winchester v. State, 163 Miss. 462, 142 So. 454.
There is no statutory rule to be applied in addition to the rule established by Sections 474 and 575, Code of 1930.
Before appellant, without its consent, could be compelled to try this case on the merits, the law required the existence of a fact, not the application of a "legal fiction." The fact required was that appellant must be "personally served with process for thirty days before the return-day," and such fact did not exist.
25 C.J. 1086.
To determine the legislative intent in the case of ambiguity, resort may be had to the history of the statute.
59 C.J. 958-60, 1005-7 and 1017; Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449.
Section 722, Chapter 21, Code 1892, that is to say, Chapter 142, Laws of 1904, became Section 783, Chapter 20, Code 1906, at page 343, and subsequently became Section 566, Chapter 9, Code 1917, at page 527, and subsequently became Section 575, Chapter 12, Code 1930, in each instance being a part of the chapter on Circuit Courts. In so far as the point in question is concerned, there has been no change in the statute since the enactment of Chapter 142, Laws of 1904.
In view of the history of Sections 474 and 575, Code 1930, it will be observed that these statutes have stood upon their own combined independent footing back through preceding codes of Mississippi.
Oglesby v. Stribling, 67 Miss. 666, 7 So. 463.
Section 1397 has no application to sections 474 and 575, Code 1930.
Appellant complied with Section 6125 of the Code of 1930, (1) by ringing the bell as therein required, or (2) by blowing whistle for part, and ringing bell for remainder, of three hundred-yard distance.
One witness who hears the ringing of a bell is worth more than the testimony of a dozen witnesses who did not hear it unless in some manner their attention had been especially called to it. The witness who heard the bell either tells the truth, or he tells a deliberate and wilful falsehood, while the witness who did not hear the bell may be and is probably truthful. The bell may be rung or the whistle blown without attracting the attention of persons who are familiar with such sounds.
Urias v. Railroad Co., 152 Pa. 326, 25 A. 566; Horandt v. Railroad Co., 73 A. 93; Rich v. Ry. Co., 149 Fed. 79, 78 C.C.A. 663; Johnson case, 157 Miss. 266, 126 So. 827.
Independently of giving signals and, only for the sake of argument, admitting that they may not have been given in strict compliance with the statute, such failure did not proximately cause the accident for the reasons that:
1. The noises of and in the bus prevented train signals from being heard, and negligence cannot be predicated on not doing a thing which would have been utterly useless, if done;
2. When the driver of the school bus stopped and looked for the train, the train was in sight, he had every notice which signals would have given him and cannot be heard to say that he did not see the train and that signals were not given.
Railroad Co. v. Kellam, 83 Va. 851, 3 S.E. 703; Perkins v. Railroad Co., 57 Hun. 586, 10 N.Y.S. 356; Siegel v. Railroad Co., 79 Wis. 404, 48 N.W. 488; Albrecht v. Railroad Co., 108 Wis. 530, 84 N.W. 882; Hook v. Railroad Co., 162 Mo. 569, 63 S.W. 630; Moore on Facts, sec. 280; Peters v. Ry. Co., 135 Ala. 533, 33 So. 332; Ry. Co. v. Williams, 137 S.W. 828; Railroad Co. v. Batsel, 140 S.W. 726; Zibbell v. Sou. Pac. Co., 160 Cal. 237, 116 P. 513; Westerkamp v. Railroad Co., 41 Colo. 290, 92 P. 687; Harten v. Railroad Co., 18 App. Cas. 260; Johnson v. Railroad Co., 61 Ill. App. 522; Railroad Co. v. Kirby, 86 Ill. App. 57; Railroad Co. v. Gallagher, 109 Ill. App. 67; Railway Co. v. DeFrietas, 109 Ill. App. 104; Railroad Co. v. Vremeister, 112 Ill. App.? 346; Railway Co. v. Hirsch, 132 Ill. App. 656; Railroad Co. v. Fraze, 150 Ind. 576, 65 A.S.R. 377, 50 N.E. 576; Railway Co. v. Baker, 104 S.W. 1182; Artz v. Railroad Co., 34 Ia. 153; Payne v. Railroad Co., 39 Ia. 523; Bloomfield v. Railway Co., 74 Ia. 607, 38 N.W. 431; Young v. Railway Co., 57 Kan. 134, 45 P. 583; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Blumenthal v. Railroad Co., 97 Me. 255, 54 A. 747; Day v. B. M.R.R., 97 Me. 528, 55 A. 420; McCarthy v. Railroad Co., 90 A. 490, 54 L.R.A. (N.S.) 140; N.C. Ry. Co. v. Mediary, 86 Md. 168, 37 A. 796, 3 Am. Neg. Rep. 411; Railway Co. v. Beasley, 117 Md. 270, 83 A. 157; Carlson v. Railway Co., 296 Minn. 504, 105 N.W. 555, 113 A.S.R. 655, 4 L.R.A. (N.S.), 349; State v. Dettner, 27 S.W. 1117; Hook v. Railway Co., 162 Mo. 569, 63 S.W. 360; State v. Gurley, 70 S.W. 875; Barrie v. Co., 102 Mo. App. 87, 76 S.W. 706; Porter v. Railway Co., 199 Mo. App. 82, 97 S.W. 880; Schaub v. Railway Co., 133 Mo. App. 444, 113 S.W. 1163; Waggoner v. Railroad Co., 152 Mo. App. 173, 133 S.W. 68; Dolfini v. Railroad Co., 178 N.Y. 1, 70 N.E. 68; Fiddler v. R.R. Co., 64 App. Div. 95, 71 N.Y.S. 721; Madigan v. Railroad Co., 74 N.Y. Supp. 143, 68 App. Div. 123; Swartz v. Railroad Co., 81 App. Div. 402, 80 N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1151; McKinley v. Railway Co., 86 N.Y. Supp. 461, 91 App. Div. 153; Stapp v. Railway Co., 29 N.Y. Sup. 1008, 80 Hun. 178; Belch v. Railroad Co., 36 N.Y. Sup. 56, 90 Hun. 477; Montenes v. Railway Co., 78 N.Y. Sup. 1059, 77 App. Div. 493; Golden v. Railway Co., 98 N.Y. Sup. 848, 49 Misc. 521; O'Brien v. Railroad Co., 113 N.Y. Sup. 329, 129 App. Div. 288; Railway Co. v. Elliott, 28 O. St. 340; Marland v. Railroad Co., 123 Pa. St. 487, 16 A. 624, 10 A.S.R. 541; Meyers v. Railroad Co., 150 Pa. 386, 24 A. 747; Urias v. Railroad Co., 152 Pa. 336, 25 A. 566; Holden v. Railroad Co., 169 Pa. 1, 32 A. 103; Railway Co. v. Wilson, 60 S.W. 438; Railway Co. v. Skinner, 119 Va. 843, 89 S.E. 887; Cawley v. Railway Co., 101 Wis. 145, 77 N.W. 179; Stafford v. R.R. Co., 110 Wis. 331, 85 N.W. 1036; Marshal v. R.R. Co., 125 Wis. 96, 103 N.W. 249; White v. Ry. Co., 147 Wis. 141, 133 N.W. 148; Railway Co. v. Smith, 40 L.R.A. 246, 86 Fed. 295, 30 C.C.A. 58; Railway Co. v. Andrews, 130 Fed. 65, 64 C.C.A. 399; Waters-Pierce Oil Co. v. Van Elderen, 137 Fed. 557, 70 C.C.A. 255; Railway Co. v. Collier, 137 Fed. 347; Railroad Co. v. Cundieff, 171 Fed. 319, 96 C.C.A. 211; Railroad Co. v. Hurlburt, 221 Fed. 907, 137 C.C.A. 477; Am. Car Foundry Co. v. Kinderman, 216 Fed. 499, 132 C.C.A. 577; Hickey v. Railroad Corp., 8 F.2d 128; Michelson v. Nebraska, etc., Co., 63 F.2d 597; 1 Moore on Facts, sec. 160, pages 204-6; Railway Co. v. McGee, 117 Miss. 370, 78 So. 296; Pietri v. Railroad Co., 152 Miss. 185, 119 So. 164; Bufkin v. Railroad Co., 161 Miss. 594, 137 So. 517; Railroad Co. v. Green, 147 So. 333; Railroad Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A.L.R. 516; Watts v. Public Service Corp., 168 Miss. 235, 150 So. 192; Berryhill v. Nichols, 158 So. 470; Railroad Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Gundry v. Railway Co., 286 P. 718; Railway Co. v. Judah, 65 Kan. 274, 70 P. 346; Hutchinson v. Railway Co., 161 Mo. 246, 61 S.W. 635, 852, 195 Mo. 546, 63 S.W. 931; Kilcummings v. Railway Co., 185 Ill. App. 370; Gosa v. Railway Co., 67 S.C. 347, 45 S.E. 810; Pakalinsky v. Railroad Co., 84 N.Y. 424; Daniels v. Transit Co., 125 N.Y. 407, 26 N.E. 466; Haben v. Electric Co., 22 App. Div. 426, 48 N.Y.S. 38; Millinan v. Railway Co., 190 App. Div. 139, 95 N.Y.S. 1097; Raymer v. Railroad Co., 204 App. Div. 135, 198 N.Y.S. 261.
Appellees are not aided by the fact that the jury returned a verdict in their favor.
Railroad Co. v. Johnson, 157 Miss. 266, 126 So. 827; Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113; Railroad Co. v. Jackson, 92 Miss. 517, 46 So. 142; Covington County v. Fite, 120 Miss. 421, 82 So. 308.
Count Two of the declaration merely charged that the bus came on the track in front of the train, which was then running at a speed of about twelve or fifteen miles per hour, and the engineer, at the time appreciating the danger to the occupants, negligently failed to exercise reasonable care to stop the train, but struck and pushed the bus a distance of one hundred eighty-four feet. That count was based solely upon non-action on the engineer's part. The declaration did not state what it was that he failed to do which he should have done, which would have stopped the train enough quicker to have prevented the accident.
M. O.R.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539.
Appellees say he did not do "all in his power to avert the injury," because he did not apply sand; but they fail to make any issue for the jury on that point.
Appellant submits that Mr. Evans' prompt and efficient reaction to the realization of the emergency can only excite admiration. But had he not so reacted, he would not have been negligent.
Brookhaven Lbr. Mfg. Co. v. R.R. Co., 10 So. 66; 45 C.J. 698; 20 R.C.L. 29.
Under the issue as drawn by the pleadings appellant contended and still contends that it was entitled to exercise four peremptory challenges without reference to what challenges might be allowed to Ernest Williamson and R. Evans. The court acknowledged the justice of appellant's contention that Ernest Williamson was not a true co-defendant to the extent of putting him in a separate category and giving him four peremptory challenges, but allowed to it, the real defendant in the case, only such peremptory challenges out of four as it might obtain by private agreement with counsel for R. Evans, the other defendant. If Ernest Williamson was such a defendant as appellees would have the court believe, then the defense as a unit were entitled to only four; but if Ernest Williamson was entitled to four, then this appellant was entitled to four.
Section 6639 of the Code of 1930 was an integral part of the contract of transportation between Sam Williamson and, therefore, his driver-son, and the school. It being shown that the State Board had promulgated rules and regulations properly identified, they, too, by law entered into such contract. They were offered not as a bar per se to appellees' action, but as proper defensive matter, going to the negligence of both Tessie Roberts and Ernest Williamson, in connection with the operation of the bus at the crossing, and in passing upon the issue of proximate cause.
It will be noted that appellees did not object to the introduction of these rules and regulations and there is no escape, as appellant sees it, from the act of the court in permitting the introduction as between appellees and appellant from constituting fatal and reversible error. There was one issue between appellees and this appellant. There was an entirely different issue between appellees and Ernest Williamson.
In adopting Section 722, Code 1892, and in adopting Chapter 142, Laws of 1904, and Section 783, Code 1906, and Section 566, Code 1917, and Section 575, Code of 1930, certainly the legislature knew that it was adopting a statute which contained the words "on or before" in the first sentence thereof, and knew that in recognizing the distinction between "on" on the one hand, and "before" on the other, that the word "before" would be given the same meaning throughout the statute, and that is exactly what the legislature intended should be done.
Hannah Simrall, of Hattiesburg, for appellants.
Summons was served on this appellant on the twenty-first day of July, 1934, returnable on the twentieth day of August, 1934, and it was, and is, the theory of this appellant that the case was not triable at the August term of the Circuit Court, under Section 575 of the Code of 1930.
We submit that the trial court committed reversible error in the court's ruling with reference to peremptory challenges to the jury. There were three defendants; the Mississippi Central Railroad Company, R. Evans and Ernest Williamson. The appellees, the plaintiffs, of course, were allowed four peremptory challenges; the court allowed Ernest Williamson four peremptory challenges, but the court then ruled that the Mississippi Central Railroad Company and R. Evans would be allowed four peremptory challenges to be divided between said defendants as they saw fit.
Certainly, a trial judge must necessarily be given wide discretion in controlling the trial of cases. But, when the trial judge so arbitrarily exercises that discretion as to deny to litigants their rights that are guaranteed to litigants under the Constitution of the State of Mississippi and of the United States, it constitutes error that must be corrected by the appellate courts.
We cannot conceive of any more effective denial of the "Due Process of Law" guaranteed to this appellant by the due process clause of the Fourteenth Amendment to the Federal Constitution, and by Section 14 of the Constitution of the State of Mississippi, than to so limit the time for the presentation of the law as given by the court's instructions and the facts reflected by the testimony as to practically amount to a denial of the presentation of these facts.
If one has acted with ordinary prudence and judgment he is not negligent, although danger might have been avoided if he had acted in a different manner, and hence, the doing of an act in a certain manner is not necessarily negligent merely because there may have been a safer manner of doing it. A fortiori, negligence cannot be inferred from failure to do an act in some other way, not shown to be safer than the way in which it was done, and when prudent men differ as to which of two courses is safer, negligence cannot be predicated on the adoption of either.
45 C.J. 698, para. 70; Boston, C.C. N.Y. Canal Co. v. Seaboard Transp. Co., 270 Fed. 525, 256 U.S. 692, 65 L.Ed. 1174; 20 R.C.L., Negligence, sec. 22, page 29; Donahue v. Kelly, 181 Pa. St. 93, 37 A. 186, 59 Am. St. R. 632; Brookhaven Lbr. Mfg. Co. v. Illinois Central R.R. Co., 10 So. 66.
The negligence, and not something else, must have been the cause which produced or directly contributed to the death. . . . and, as in other cases, this essential element must be proved as a reasonable probability. To prove no more than that it was a possibility is not a sufficient foundation for the support of a verdict or judgment.
Berryhill v. Nichols, 158 So. 470; Shell Petroleum Co. v. Eagle Lbr. Supply Co., 158 So. 333; Williams v. Lumpkin, 152 So. 842; N.O. N.E.R.R. Co. v. Holsomback, 151 So. 720; Burnside v. Gulf Refining Co., 148 So. 219; Y. M.V.R.R. Co. v. Greene, 147 So. 333; 45 C.J., pages 698 and 699.
Hall Hall and Henry Mounger, all of Columbia, for appellee.
There was thirty days' service under the statute and the case was triable.
Sections 575 and 1397, Code of 1930; Morrison v. Gaillard, 25 Miss. 194; Hall v. Cassidy, 25 Miss. 48; 62 C.J., pages 986, 993, 994 and 996.
Separate statutes should be construed together and harmonized to reflect the legislative intent.
Middleton v. Lincoln Co., 84 So. 907; Jackson Co. v. Worth, 90 So. 588; Sartin v. Prentiss Co., 125 So. 563; Clarksdale v. Board, 150 So. 783; Hancock Co. v. Bay St. Louis, 128 So. 331; Weems v. U.S.F. G. Co., 128 So. 503; 62 C.J. 978.
Under the evidence there were no noises in the bus to prevent hearing of signals.
The bus driver did not see the train. But if he had seen it, his negligence in failing to stop cannot be imputed to deceased.
C. G. v. Lee, 115 So. 782; G. S.I. v. Carlson, 102 So. 168; Grantham v. G. S.I., 103 So. 131; Y. M.V. v. Beasley, 130 So. 499.
Bus driver's knowledge of approaching train would not bar his own recovery, and certainly it would not bar recovery by his guest.
Section 6124, Code of 1930; G.M. N. v. Seymour, 114 So. 35; G.M. N. v. Arrington, 107 So. 378.
It was a question for the jury whether the train was stopped as soon as it should have been. It is the engineer's duty to stop train or check speed when he discovers peril of person on the track.
Cottrell v. R.R., 80 Miss. 610; Jamison v. R.R., 63 Miss. 33; M. O. v. Watly, 69 Miss. 145; Christian v. I.C.R.R., 71 Miss. 237; R.R. v. Pittman, 97 Miss. 416; N.O. G.N.R.R. v. Branton, 146 So. 870; M.P.R.R. v. Hanna, 152 So. 282; R.R. v. Hawkins, 82 Miss. 209; R.R. v. Harrison, 105 Miss. 18; G. S.I. v. Williamson, 139 So. 601; Y. M.V. v. Daily, 127 So. 575.
It was a question for the jury even under the emergency doctrine which appellant raises.
45 C.J. 710, 713.
The engineers who testified for appellees were qualified as experts.
N.O. G.N. v. Brandon, 146 So. 870; 1 Wigmore on Evidence, sec. 561; I. S.C. v. Tolson, 35 L.Ed. 270; C. E.S. v. Edgar, 25 L.Ed. 487; S. B.M. v. Phelps, 32 L.Ed. 1037; G.V.G. N.R. Co. v. Lyon, 51 L.Ed. 276; Stewart v. Sloss, 54 So. 48; King v. King, 134 So. 827; Coleman v. Adair, 75 Miss. 664; R.R. v. Forrister, 48 So. 71; R.R. v. Gullatt, 48 So. 474; Birmingham v. Randle, 43 So. 355.
No error was committed in allowance of challenges to jury.
Section 581, Code of 1930; 16 R.C.L. 251, 252; Yonkus v. McKay, Ann. Cas. 1917E, 458; 35 C.J. 409 and 410.
Appellants did not exhaust their challenges and therefore cannot complain.
Hubbard v. Rutledge, 57 Miss. 7; Ins. Co. v. Hillmon, 47 L.Ed. 446; 4 C.J. 952; Barnett v. Dalton, 69 Miss. 611.
There was no error in requiring one defendant to proceed before the others.
1 Thompson on Trials, sec. 421.
There was no error in limiting the time for argument, and the point is improperly raised.
64 C.J. 246, 247; Dunlap v. Fox, 2 So. 169; Monmouth v. Erling, 39 A.S.R. 187.
The rules and regulations of the State Board of Education were properly excluded.
Sections 6124 and 6639, Code of 1930; Art. 1, secs. 1 2, Miss. Constitution; Panama Ref. Co. v. Ryan, 79 L.Ed. 223.
Evidence of cross-ties on the right-of-way was raised in the pleadings, and was properly admitted.
26 R.C.L. 1033.
Instruction requiring bus driver to get out and look, was properly refused.
Section 6124, Code of 1930; C. G. v. Lee, 115 So. 785; N.O. N.E. v. Hegwood, 124 So. 66; Y. M.V. v. Lucken, 102 So. 393; Pokora v. R.R., 78 L.Ed. 1149, 91 A.L.R. 1049; Little v. Hackett, 29 L.Ed. 652.
Instruction that carrying of interstate commerce is no defense was properly granted.
M.C.R.R. v. Smith, 154 So. 533.
Appellees' main instruction on signals was properly granted.
G. S.I. v. Simmons, 117 So. 345, 121 So. 144; N.O. N.E. v. Hegwood, 124 So. 66; Section 6125, Code of 1930; N. W. Ry. v. Simmons, 103 S.E. 609.
Under numerous decisions of this court it is a question of fact for the determination of a jury as to whether or not the statutory signals are given and as to whether the failure to give the signals is the proximate cause of a collision.
Y. M.V.R.R. v. Pittman, 153 So. 382, 169 Miss. 667; Young v. C. G.R.R., 147 So. 342, 165 Miss. 287; Y. M.V.R.R. v. Beasley, 130 So. 499, 158 Miss. 370.
The principle of law that this conflict in the testimony makes a question for the jury is so well established in our jurisprudence that it should hardly be necessary to quote anything on the subject, and we merely refer the court to the following additional cases:
R.R. v. Crominarity, 86 Miss. 464, 38 So. 633; Skipwith v. Railroad, 95 Miss. 50, 48 So. 964; Fuller v. R.R., 100 Miss. 705, 56 So. 783; Railroad v. Lucken, 102 So. 393, 137 Miss. 572; Railroad v. Hudson, 107 So. 369, 142 Miss. 542; C. G.R.R. v. Lee, 115 So. 782, 149 Miss. 543; Railroad v. Simmons, 117 So. 345, 150 Miss. 506; Railroad v. Simmons, 121 So. 144, 153 Miss. 327; Railroad v. Nichols, 138 So. 364, 161 Miss. 795.
Testimony that a fact did not occur, given by a witness "so situated that in the ordinary course of events he would have heard or seen the fact had it occurred" is sufficient to warrant a jury in finding that the fact did not occur.
C. G.R.R. Co. v. Lee, 115 So. 782, 149 So. 543.
Argued orally by T.C. Hannah and T.P. Brady, for appellant, and by Lee D. Hall, for appellee.
Appellees, the parents and brothers and sisters of Alice Aultman, deceased, brought this action in the circuit court of Jefferson Davis county against appellants, Mississippi Central Railroad Company and Evans, one of its passenger engineers, and Williamson, the driver of a school bus, to recover damages for the alleged wrongful death of the daughter and sister, resulting from a collision between one of the passenger trains of the railroad company and the bus. There was a verdict and judgment in the sum of six thousand dollars against all of the defendants, from which judgment the railroad company and the engineer prosecute this appeal.
Williamson, the driver of the school bus drove upon the railroad crossing going south in the village of Bassfield and was struck by the railroad company's west-bound passenger train. The bus contained about forty persons, most of them school children. The bus was carried about one hundred eighty feet on the pilot of the engine; some of the children were killed and others injured. Alice Aultman was one of the children who was killed; her body was found fastened under the pilot of the engine and crushed. The train had to be backed a little in order to release her body.
The declaration was in two counts, the first based liability on the alleged failure of the railroad company to comply with the bell and whistle statute, section 6125, Code 1930; the second count on the alleged failure of the engineer in charge of the train to exercise reasonable care to prevent the collision after he realized the danger.
Appellants contend that the case was not triable at the return term, because they were not served with process for the required length of time before the beginning of the term. Summons was served on July 21, 1934, returnable August 20, 1934, the first day of the next term. Appellants made a motion to continue until the next term, upon the ground that under the law they could not be put to trial at the return term unless thirty clear days had intervened between the service and the return of the process. In other words, that both the day of service and the day of return had to be excluded. The court overruled the motion to continue. That action of the court is assigned and argued as error. The court held that only one day had to be excluded. Section 575, Code 1930, provides, among other things, that actions in the circuit courts in which the defendants have been personally served with process for thirty days before the return day shall be tried at the return term, unless continued by consent, or on cause shown.
Section 474 provides that all things contained in the chapter on circuit courts (both of those sections being parts of the chapter on circuit courts), not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever. Section 1397, which is a part of the chapter on definitions, provides that when process shall be required to be served or notice given any number of days, the day of serving the process or of giving the notice shall be excluded and the day of appearance included; and in all other cases when any number of days shall be prescribed, one day shall be excluded and the other included, and that when the last day falls on Sunday, it shall be excluded; but in other cases Sunday shall be reckoned in the computation of time.
Appellants argue that section 575, construed in connection with section 474, is unambiguous, and not subject to construction, and therefore resort cannot be had to section 1397 to ascertain its meaning; that section 575 plainly provides that trial cannot be had at the return term unless there has been service of process "for thirty days before the return day." Section 1397 first made its appearance as article 8, chapter 64, Code 1857. Before its adoption, of course, the common law prevailed. Morrison v. Gaillard, 25 Miss. 194, and Hall v. Cassidy, 25 Miss. 48, were both decided before its adoption. The statute passed on in the Morrison Case required that summons be "executed five days before the return day." The process was executed on February 25, 1852, returnable the following Monday, March 1, 1852. The question was whether the service was sufficient to require the appearance of the defendant on the return day. The court held that the day of service should be included and the return day excluded. In the Hall Case the court construed a statute requiring the publication of notice for "four clear weeks from the day of publication." The notice was published for the first time on September 15, 1849, requiring appearance on October 13th following. The court held that the publication had not been made for the required time; that to make four weeks it was necessary to count the first insertion of the notice as well as the day on which the case was to be heard; that the "proper mode of computing time where notice for a specific time is to be given before an act can be done is to exclude the day on which the notice is given and include the day fixed for the performance of the act." That is the rule laid down in 62 C.J., sec. 43, p. 996. In Hattiesburg Grocery Company v. Tompkins, 111 Miss. 592, 71 So. 866, there was considered the statute of limitation governing suits on judgments. The statute provided that actions on judgments should be brought within seven years next after the rendition of the judgment. The court held that the day of the rendition of the judgment was excluded in the court. It is true that that decision is not directly in point, but it is at least persuasive. Section 1397, Code 1930, is exclusively a process statute and is universal in its application, unless there is a different specific method of computing time laid down in the particular statute under consideration. That is not true of section 575.
The first count of the declaration, founded on the alleged failure to comply with the bell and whistle statute, section 6125, Code 1930, is eliminated from consideration for these reasons: The court instructed the jury to return a verdict in favor of Evans, the engineer, under the first count. This instruction was given on the theory that the statute applied alone to the railroad company, and not to the engineer or any of its other servants. Whether or not the court erred in so instructing the jury is not decided, because not presented for decision. The court instructed the jury for the appellees that they could not return a verdict against the engineer without also returning a verdict against the railroad company. The jury returned a general verdict against all the defendants. In view of these two instructions, such a verdict could not have been returned except under the second count. The rule is that where there is a general verdict for the plaintiff under a declaration containing two counts leading to the same liability, such verdict is sufficient if sustained under either count. Levy v. McMullen, 169 Miss. 659, 152 So. 899.
The court refused the request of the railroad company for a directed general verdict, and also for a directed verdict on the second count. There was no error in refusing both requests.
The issue was whether, when the engineer saw and appreciated the danger of the collision with the bus, he used reasonable care to avoid it. The evidence was not all one way; there was sufficient evidence to sustain the verdict. The locomotive had all modern equipment, including sand. The evidence for appellees tended to show that the engineer saw and appreciated the danger of the collision when the train was running only about twelve miles an hour and the crossing was from seventy-five to one hundred feet ahead, and that by applying all the means at hand, including sand on the rails, the collision would not have occurred. The engineer admitted in his testimony that he did not apply the sand. The evidence also showed that the bus was carried about one hundred eighty feet west of the crossing, and that the deceased, Alice Aultman, was found under the "cow-catcher." In other words, the engineer admitted that after he saw and appreciated the danger while the train was running only about twelve miles an hour, he ran something like two hundred seventy to two hundred eighty-five feet before stopping. The evidence did not show where, between the crossing and the stopping place, Alice Aultman was crushed and killed; her life might have been saved if the train had stopped within one hundred fifty feet of the point where the engineer saw and realized the danger of the collision. When the engineer saw and appreciated the peril, it was his duty to use every reasonable means to prevent the collision. Gulf S.I. Railroad Co. v. Williamson, 162 Miss. 726, 139 So. 601; Yazoo M.V. Railroad Co. v. Daily, 157 Miss. 3, 127 So. 575; and prior decisions cited.
Mobile O. Railroad Co. v. Bryant, 159 Miss. 528, 132 So. 539; Brookhaven Lumber Mfg. Co. v. Railroad Co., 68 Miss. 432, 10 So. 66; and Donahue v. Kelly, 181 Pa. 93, 37 A. 186, 59 Am. St. Rep. 632, relied on by appellants, are not in conflict with those decisions. They are distinguishable on their facts.
Appellants invoke the emergency doctrine, which is that where one is confronted with a sudden emergency, without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as would be required of him if he had time for deliberation. However, the arising of an emergency does not relieve one from the obligation of exercising ordinary care; if he does not, he is chargeable with negligence, notwithstanding the emergency, "the proper test being how the circumstances ought to have appeared to him in the exercise of reasonable care." 45 C.J. 710-713. We do not think the emergency was such as to take the issue away from the jury.
The giving of the following instruction for appellees is assigned and argued as error: "The court instructs the jury for the plaintiffs that if you believe from the evidence that on the occasion in question, the deceased, Alice Aultman, was riding in the school bus in question and that said bus then and there approached the crossing in question on Hawkins avenue as the train of the defendant, Mississippi Central Railroad Company approached said crossing, and that the driver of said bus stopped the same and then started upon the said crossing and that the deceased was thereby placed in a position of peril and danger from the running of said train and that the deceased and the driver of said bus were ignorant of the said peril, and that the defendant R. Evans, engineer for the defendant, Mississippi Central Railroad Company, saw the said bus was going upon said crossing and realized that there was danger of a collision between said bus and said train and that said engineer saw, knew and appreciated the said position of peril of said bus in time to have stopped said locomotive and train before injuring and killing the said Alice Aultman, and that with such knowledge and appreciation, if any, that the said engineer negligently failed to exercise reasonable care to stop said train before injuring and killing the said Alice Aultman, and that said engineer by the exercise of reasonable care, could have stopped said train before injuring and killing said Alice Aultman after he knew and appreciated the fact that a collision was imminent and impending between said train and bus, and that said engineer thereafterwards negligently failed to exercise reasonable care to stop said train before injuring and killing said Alice Aultman, then the jury should return a verdict in favor of the plaintiffs and against the defendants, Mississippi Central Railroad Company and R. Evans." There was no error in giving this instruction; it was justified by the Williamson and Daily cases.
Three locomotive engineers testified on behalf of appellees that they had had experience in operating locomotives of the character of the one here involved; that they were familiar with the surrounding conditions, including the grade of the track; and that in their opinion running at a speed of something around twelve miles an hour, the train ought to have been stopped before it reached the crossing, at least soon thereafter. Appellants objected to their evidence on the ground that they did not qualify as experts. There is no merit in that contention. New Orleans Great Northern Railroad Co. v. Branton, 167 Miss. 52, 146 So. 870; Wigmore on Evidence (2 Ed.), sec. 561; Inland Sea-Board C. Co. v. Tolson, 139 U.S. 551, 11 S.Ct. 653, 35 L.Ed. 270.
Appellants contend that the court erred in passing on the jury. Appellees accepted twelve jurors and tendered the full panel to appellants and the defendant Williamson, who did not appeal. The attorney for the railroad company moved the court to require Williamson to pass on the jury first. The court sustained the motion and Williamson complied therewith. The attorney for Evans, the engineer, then moved the court to allow Evans four peremptory challenges. The attorney for the railroad also demanded four peremptory challenges. The court ruled that Williamson was entitled to four, because his interest and the interest of the railroad company were opposed to each other, and that the interest of Evans, the engineer, and that of the railroad company were identical, and for this reason the engineer and the railroad company should have four peremptory challenges jointly to be divided between them as they might see fit. On the completion of the jury, appellees exercised only two peremptory challenges, Williamson one, the railroad company three, and the engineer, Evans, none, without any objection to the railroad company exercising three. Section 581, Code 1930, provides: "In civil suits each party may challenge peremptorily four of the jurors, and as many more for whom he can show cause." What is meant by "each party?" Where the interest of two parties is identical, they are considered as one party under this statute. In this case the interest of the railroad and that of the engineer were precisely the same; if either was liable both were liable, and the liability was both joint and several. 16 R.C.L. 250-252, and cases in the note; 35 C.J. 409, 410. Furthermore, appellants were not prejudiced by the ruling of the court, if it were an erroneous ruling, because they failed to exhaust the peremptory challenges allowed them. Connecticut Mut. Life Ins. Co. v. Hillmon, 188 U.S. 208, 23 S.Ct. 294, 47 L.Ed. 446; 4 C.J. 952; Hubbard v. Rutledge, 57 Miss. 7.
The action of the court in requiring the railroad company to present its evidence before that for the bus driver, Williamson, was offered, was excepted to, and is assigned and argued as error. The court required Williamson to pass on the jury first. We can see no harm done any of the appellants by that course. The order in which a trial shall be conducted, where there are several defendants, is largely in the discretion of the court. Unless there is an abuse of such discretion resulting in harm, no one has a right to complain. Thompson on Trials (2 Ed.), vol. 1, sec. 421.
Appellees were allowed one hour and a half for argument; Williamson, the bus driver, was allowed fifteen minutes; one hour and a half was allowed the railroad company and the engineer, to be divided between them as they might agree upon. That action of the court is assigned and argued as error. In the absence of a statute providing otherwise, the court may exercise reasonable discretion in limiting the time of argument to the jury, and if counsel desires to complain of the shortness of the time allowed, he should consume the time allotted, and if he cannot complete his argument should except to the refusal of the court to allow him additional time. 64 C.J. 246, 247. That course was not pursued in this case. Substantially the same rule is laid down by this court in Dunlap v. Fox (Miss.), 2 So. 169.
Appellants complain of the action of the court in refusing an instruction that it was the duty of the bus driver to get out of the bus and look and listen for the approaching train before entering upon the crossing. Section 6124, Code 1930, prescribes the duties of the driver of a motor vehicle in approaching and crossing a railroad; it requires him to stop, look, and listen, but not to get out. We decline to add any additional requirement to the statute.
The assignments of error under the first count are not considered, since that count is eliminated. We do not think the other assignments of error growing out of the trial under the second count are of sufficient merit to call for a discussion.
Affirmed.