Opinion
No. 33054.
March 7, 1938.
1. CARRIERS.
A passenger is entitled to travel upon the assumption that there will be no failure of duty on part of carrier.
2. DAMAGES.
Generally, an injured person has the duty to use reasonable care and to make reasonable effort to prevent or minimize the consequences of the wrong or injury, but the rule is one of reason, and, where funds are necessary to meet the situation and the injured person is without the funds, he is excused from the effort.
3. DAMAGES.
Where passenger three months advanced in pregnancy and with three small children and baggage was put down by bus driver near noon on a hot day in August nearly three miles beyond her station at which there had been a conveyance to meet passenger, evidence sustained jury's conclusion that passenger did not unreasonably increase danger of injury by undertaking, in heat of day instead of waiting until later in afternoon, to walk from point where she was discharged to parents' home about four miles away.
4. NEGLIGENCE.
When an act or omission is negligent, it is not necessary, in order to render it the proximate cause, that the actor could or might have foreseen the particular consequence or precise form of injury if by the exercise of reasonable care he might have foreseen or anticipated that some injury might result.
5. NEGLIGENCE.
If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.
6. DAMAGES.
The negligent actor may be liable for harm to another, although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct.
7. CARRIERS.
Where passenger three months advanced in pregnancy was put down by bus driver near noon on a hot day in August nearly three miles beyond her station at which there had been a conveyance to meet her, and passenger, being without money to employ a conveyance, undertook to walk with three small children and baggage to parents' home about four miles away, in passenger's action for damages, permitting jury to consider testimony that passenger suffered a heatstroke, over objection that such eventuality was not reasonably foreseeable by carrier, was not error.
8. DAMAGES.
$1,925 damages to passenger who suffered heatstroke after being put down by bus carrier near noon on hot day in August nearly three miles beyond her station was not excessive where passenger was three months advanced in pregnancy and was required to remain in bed three or four weeks.
APPEAL from the circuit court of Madison county. HON. JULIAN P. ALEXANDER, Judge.
Stevens Stevens, George R. Nobles and Bob Ray, all of Jackson, for appellant.
The court erred in permitting the plaintiff to recover for sickness and illness from heat prostration, and from the effects of heat exhaustion or heat prostration.
17 A.L.R. 1197, Annotation, "Sunstroke as Accident;" 13 A.L.R. 979, Annotation "Sunstroke as Accident;" 7 L.R.A. (N.S.) 1178, Annotation, "Proximate Result;" Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719, 42 S.E. 1024; Cincinnati, N.O. Texas Pacific R. Co. v. Raine, 113 S.W. 495, 19 L.R.A. (N.S.) 753; Columbus Greenville Ry. v. Coleman, 172 Miss. 514, 160 So. 277; Continental Cas. Co. v. Bruden, 178 Ark. 683, 11 S.W.2d 493, 61 A.L.R. 1192; 10 C.J. 838, sec. 1278; Couch, Cyclopedia of Ins. Law, sec. 1154; Doyle v. City of Saginaw, 258 Mich. 467, 243 N.W. 27; Gallagher v. Fidelity Casualty Co. of N.Y., 163 App. Div. 550, 148 N.Y.S. 1016; Garland v. Carolina, etc., Ry., 90 S.E. 779, L.R.A. 1917B 706; Haley v. St. Louis Transit Co., 179 N.W. 30, 77 S.W. 731, 64 L.R.A. 295; Higgins v. Midland Cas. Co., 281 Ill. 431, 118 N.E. 11; Jabron v. State, 172 Miss. 135, 159 So. 406; Landress v. Phoenix Mutual Life Ins. Co., 78 L.Ed. 537, 54 S.Ct. 461, 90 A.L.R. 1382; LeBeau v. Minneapolis, etc., Ry. Co., 159 N.W. 577, L.R.A. 1917A 1017; Louisville N.R. Co. v. Blair, 154 Miss. 680, 123 So. 859; Louisville N. Ry. Co. v. Mask, 64 Miss. 738, 2 So. 360; Louisville N. Ry. v. McArthur, 137 Miss. 780, 102 So. 842; Louisville N. Ry. v. Quick, 28 So. 14; Mather v. London Guarantee Accident Co., Ltd., 125 Minn. 186, 145 N.W. 863; Malcolm v. Louisville N. Ry. Co., 155 Ala. 337, 46 So. 768; Morse v. Duncan, 14 Fed. 396; Natchez, Columbia Mobile R. Co. v. Lambert, 99 Miss. 310, 54 So. 836; Pack v. Prudential Cas. Co., 170 Ky. 47, L.R.A. 1916E 952, 185 S.W. 493; U.S. Fidelity Cas. Co. v. Hoflinger, 45 S.W. 868; Y. M.V. Ry. v. Hardie, 100 Miss. 132, 55 So. 42, 106 Miss. 436, 64 So. 1; Y. M.V. Ry. v. Williams, 114 Miss. 236, 74 So. 835.
Plaintiff's failure and inability to hire a conveyance not proximate result of carrying beyond destination.
Central of Ga. Ry. v. Barnitz, 198 Ala. 156, 73 So. 471; Gage v. I.C. Ry., 75 Miss. 17; L. N. Ry. v. Clark, 205 Ala. 152, 87 So. 676; N.O., etc., Ry. v. Statham, 42 Miss. 607; Sevier v. Vicksburg R. Co., 61 Miss. 8.
The court erred in overruling the defendant's motion for a new trial.
Galtney v. Wood, 149 Miss. 56, 115 So. 117; G. M.V. Ry. v. Jones, 155 Miss. 689, 125 So. 114.
The court erred in denying the defendant's instruction to the effect that if the plaintiff wished to get off at the next point beyond Gitano, and so advised the driver, she could not recover.
Gage v. I.C. Ry., 75 Miss. 17; N.O., etc., Ry. v. Statham, 42 Miss. 607; Sevier v. Vicksburg, etc., Ry., 61 Miss. 8.
The court erred in granting the plaintiff an instruction authorizing the recovery of medical bills and bodily pain and mental suffering, as shown by the instruction.
Louisville N. Ry. v. Blair, 154 Miss. 680, 123 So. 859.
The court erred in instructing the jury that the defendant was under the duty to return the plaintiff to her destination.
I.C. Ry. v. Hawkins, 114 Miss. 110, 74 So. 773, L.R.A. 1917D 977; N.O.E. Ry. v. Martin, 140 Miss. 410, 105 So. 864; Y. M.V. Ry. v. Hardie, 100 Miss. 132, 55 So. 42.
The court erred in instructing the jury that the plaintiff might recover damages for being forced to walk across country in the heat of the day.
Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Williams v. Gulfport, 163 Miss. 334, 141 So. 228.
The court erred in granting the plantiff's instruction regarding her prior arrangements to be met at Summerland.
Central of Georgia Ry. v. Barnitz, 73 So. 471; Eagle Cotton Oil Co. v. Pickett, 175 Miss. 577, 166 So. 764; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Louisville N. Ry. v. Quick, 28 So. 14; Potera v. Brookhaven, 95 Miss. 774, 49 So. 617; Y. M.V. Ry. v. Aultman, 173 So. 280.
The verdict of the jury is excessive.
Burns v. A. V. Ry., 93 Miss. 816, 47 So. 640; Case v. Y. M.V. Ry., 114 Miss. 21, 74 So. 773; G.M. N. Ry. v. Jones, 155 Miss. 689, 125 So. 114; M. O. Ry. v. Currie, 113 Miss. 45, 73 So. 868; Y. M.V. Ry. v. O'Keefe, 125 Miss. 536; Y. M.V. Ry. v. Smithart, 111 Miss. 299, 71 So. 562.
White McCool, of Canton, for appellee.
Our court in the case of L.N.O. T. Ry. Co. v. Durfree, 13 So. 697, holds, quoting from the syllabus:
"In an action against a railroad company for failure to uncouple its cars so as not to obstruct a highway crossing for more than five minutes, as required by Code 1880, Sec. 1049, plaintiff may recover for injuries resulting from exposure to the weather while waiting an opportunity to cross defendant's track, though there were houses nearby in which he could have obtained shelter."
Southern R.R. Co. v. Floyd, 55 So. 287, 99 Miss. 519.
Counsel complain that the injury complained of was too remote, and was not the proximate result of appellee being put off beyond her station. We submit that the case of Terry v. N.O.G.N.R.R. Co., 60 So. 729, 103 Miss. 679, is in point.
Y. M.V.R.R. Co. v. Smith, 60 So. 73, 103 Miss. 150; Jarrell v. N.O. N.E.R. Co., 68 So. 659; Dantzler v. Hurley, 81 So. 163; I.C.R.R. Co. v. Thomas, 109 Miss. 536; Oliver Bus Lines v. Skaggs, 164 So. 9; Superior Oil Co. v. Richmond, 172 Miss. 407, 159 So. 850.
Della Martin, appellee, had notified someone to meet her at Summerland; and in response to such notice a conveyance was there to transport her to her ultimate destination. And appellant's negligence in carrying appellee beyond her station necessitated her walking and carrying her eighteen month old child who could not walk, and another four year old child who, due to its youth, gave out on the way, and with Della Martin it was not a matter of choice, but one of vital necessity. Is it not reasonable to assume that the appellant's agent could have easily anticipated the consequences resulting to Della Martin under the circumstances when placed in the situation which he so carelessly and negligently placed her?
Sun strokes or heat strokes are by no means infrequent occurrences; and it is a recognized fact in the experience of everyone, that one who has been so afflicted, is thereafter most sensitive to the heat of the sun.
Dozier v. Fidelity Casualty Co., 12 L.R.A. 114; L.N.O. T.R.R. v. Mask, 2 So. 360, 64 Miss. 738; Y. M.V.R.R. Co. v. Hardie, 64 So. 1, 106 Miss. 436.
The instructions given defendant were broad and liberal in scope. If any of the instructions complained of are erroneous, which we most emphatically deny, then any error which might have been committed is, to say the most, harmless, and is cured by Rule No. 11 of the Supreme Court.
It is the peculiar province of the jury to assess damages, and when, as in actions sounding in damages merely, the law furnishes no legal rule of measurement, save their discretion under the evidence before them, it is very rare indeed that a court will feel justified in setting aside a verdict merely for excess. It is not enough that, in the opinion of the court, the damages are too high. It may not rightfully substitute its own sense of what would be a reasonable compensation for the injury, for that of the jury. Judges therefore should be very careful how they overthrow verdicts given by twelve men, on their oaths, on the ground of excessive damages.
N.O. G.N.R.R. Co. v. Hurst, 36 Miss. 660.
Argued orally by John Morgan Stevens, Jr., for appellant and by J.P. White and D.C. McCool, for appellee.
Appellee, a negro woman, thirty-seven years of age, had arranged to visit her parents, who resided in Jones county about four miles from Summerland; and as a part of that arrangement a conveyance was to be sent to Summerland to meet her on arrival of appellant's noonday bus on Thursday, August 13, 1936. On the morning of that day appellee, with three children, took passage on one of appellant's busses, having procured and presented the necessary tickets to Summerland; and her brother went to Summerland with a conveyance to meet her, as previously arranged.
The bus driver was a new employee on that route and was unacquainted with the route or the stops. At Taylorsville he got on the wrong road, and, after being directed by a passenger to the correct route, appellee took the precaution to advise him that her stop would be next. The driver did not stop at Summerland nor announce his approach to that point, but continued beyond as if there were no such stop. The highway at Summerland had been changed since appellee's last visit to her parents, and she did not realize that Summerland had been reached or passed until the bus arrived at or near Knight's filling station and store, nearly three miles beyond. She thereupon at once informed the driver that he had taken her beyond her station and requested that she be returned. It was not allowable for appellant to turn around in response to this request, but no compliance with it in the alternative was offered, and she was put out at Knight's with her baggage and children.
This was about 12 o'clock on an extremely dry and hot August day. It was about four miles from this point to her parents' home. She had no money to employ a conveyance. She left part of her baggage with Mrs. Knight, and with the remainder she started afoot to her parents' home. She was carrying in her arms a child eighteen months old. There was another child four years old, who soon became exhausted and also had to be carried. The other child eight years old was able to render little assistance. Appellee was three months pregnant, and in this condition with the burdens aforementioned she did not reach her parents' home until 4 o'clock, and then in a state of exhaustion and prostration, wet with perspiration, nauseated, with pains in her head, stomach, back, and side, and with a fever. She went immediately to bed and there remained until Monday morning when, by conveyance, she was taken to the station, from whence she reached her home in Madison county. She was there taken at once to a competent physician who, upon examination, was apprehensive of a miscarriage. At the direction of the physician she was put to bed and there remained for about three to four weeks, and was in bed for a part of the time for an additional like period, or a little longer. Previously she had always been in good health.
Her physician continued to attend her at frequent intervals until the birth of her child in February, and had her under observation until the trial of this cause in June, 1937. He testified that her health was permanently impaired, that she would never be able to work in the heat as she had always theretofore been accustomed to do, and said she had suffered from what he termed a heatstroke attributable to her experience above set out. No attempt was made to question or discredit the physician's testimony in any way; he was not even cross-examined.
The first contention of appellant to be noticed is that appellee should have employed a conveyance at Knight's and that, had she done so, her personal injury would have been avoided and her damages would have been only the price paid for the conveyance. It has already been mentioned that she had no money to employ a conveyance. The poor are entitled to avail of the facilities of public carriers upon the payment of the public rate and are not required to have an additional sum to provide against the consequences of a breach of the contract of carriage; they are entitled to travel upon the assumption that there will be no failure of duty on the part of the carrier. Moreover, in the recent case, North American Ins. Co. v. Henderson, 177 So. 528, we held that, while generally an injured person has the duty to use reasonable care, and to make reasonable effort to prevent or minimize the consequence of the wrong or injury, the rule is one of reason and that, where funds are necessary to meet the situation and the injured person is without the funds, he is excused from the effort.
The next contention is that appellee unnecessarily and unreasonably increased the danger of injury by undertaking the trip from Knight's to her parents' home by starting out in the middle or heat of the day instead of waiting until later in the afternoon. This point as to the reasonableness of her conduct under all the facts and circumstances was submitted to the jury, under a separate instruction, given at the request of appellant and directed specifically to the point, and we are unable to say that the jury was not warranted in reaching the conclusion which they did upon this issue.
Appellant as its third, and perhaps main, contention argues that the court was in error in allowing to go to the jury for their consideration the testimony that appellee suffered a heatstroke, spoken of by appellant as a sunstroke. Appellant says that this was an eventuality which was not reasonably foreseeable by it, and that in law such a happening must be designated as an accident. Appellant cites many cases from other jurisdiction which apparently sustain the contention. The books abound in cases dealing with proximate cause; almost anything may be found on the subject. As said by this court in Yazoo M.V. Railway Co. v. Smith, 103 Miss. 150, 163, 60 So. 73, 74, "the subject of proximate cause has been vexatious to the courts." There is perhaps no other branch of the law wherein it is more essential, in the interpretation of judicial opinions, to have in mind the precise facts of the case to which a particular decision is directed.
We will not add to the overcrowded field of discussion on that subject, but will content ourselves with the statement of succinct principles, which we think are obviously applicable to the facts here in hand. The rule is settled in this state that, when an act or omission is negligent, it is not necessary, in order to render it the proximate cause, that the actor could or might have foreseen the particular consequence or precise form of the injury, if by the exercise of reasonable care he might have foreseen or anticipated that some injury might result. Cumberland Telephone Telegraph Co. v. Woodham, 99 Miss. 318, 332, 54 So. 890. When the conduct of the actor was negligent and he could or should have foreseen that some harm would come to another as a result thereof, then the two following statements of established principle come into play: "If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable." Section 435, Restatement Torts. "The negligent actor may be liable for harm to another although a physical condition of the other which is neither known nor should be known to the actor makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct." Section 461, Restatement Torts.
Here a woman, three months advanced in pregnancy and at a period when above all she should not have been subjected to any such hardship, was put down near noon on a blistering hot day in August nearly three miles beyond her station at which latter there had been a conveyance to meet her, and with an infant in arms and two other small children and with baggage, and when and where the negligent actor knew or should have known that she would or might have no means to get to her ultimate destination and would suffer thereby in her efforts to extricate herself from her unfortunate situation. It is immaterial, therefore, that the actor did not foresee the full extent of her injuries, which resulted from and in an unbroken chain of natural and actual sequence from the time she left Knight's until she reached her parents' home. The principles which we are applying here are those the court had in mind in Louisville, N.O. T. Railroad Co. v. Mask, 64 Miss. 738, 2 So. 360, and Yazoo M.V. Railroad Co. v. Hardie, 106 Miss. 436, 64 So. 1, which although not precisely similar upon the facts, are yet so close in analogy that we might well have pointed to them, without more, for an affirmance of the present judgment. See, also, Illinois Cent. Railroad Co. v. Thomas, 109 Miss. 536, 68 So. 773, and Terry v. Railroad Co., 103 Miss. 679, 60 So. 729, 44 L.R.A., N.S., 1069.
Vigorous attack is made by appellant upon the instructions granted at the request of appellee. That these instructions could have been more accurately drawn and that they contain minor or technical errors must be admitted. But this may be said of the instructions in a large percentage of the circuit court cases that come here for review. When all the instructions are read together, they seem to us to furnish a fairly correct statement of the principles of law governing the case; and we think that the occasional inaccuracies of language could hardly have misled a jury of good intelligence and sound judgment as we must presume the members of the jury to have been. The instructions which were refused were properly refused.
Appellant insists finally that the verdict of $1,925 is excessive. For obvious reasons, this court has been cautious in the matter of allowing large verdicts to stand in cases where passengers have been put off at the wrong station or have been carried beyond their station. Appellant cites six comparatively recent cases wherein this court has reduced the award in such actions, and in none of these was the award for as much as $2,000. But in the case, Yazoo M.V.R. Co. v. Hardie, supra, where the injury was certainly no greater than here, the court refused to disturb a verdict of $5,000. In view of the testimony of the physician in this case, we have concluded that we cannot interfere with the amount allowed in this verdict.
Affirmed.