Opinion
No. 33070 1/2.
February 28, 1938.
1. APPEAL AND ERROR.
An instruction containing statement that, if jury believed from evidence that passenger was put off of train at certain city some distance from her destination, then carrier was negligent, and, if jury further believed from evidence that the negligence was proximate cause of injury, if any, to passenger, verdict should be for passenger, was reversible error, where there was no evidence tending to show that passenger did not voluntarily leave train at that city.
2. TRIAL.
Where there was a sharp conflict between testimony of plaintiff and defendant's witness, refusing instruction regarding credit to be given any witness interested in result of suit as a party or otherwise was error (Code 1930, sections 586, 1527).
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Dent, Robinson Ward, of Vicksburg, Burch, Minor McKay, of Memphis, Tenn., and E.C. Craig, of Chicago, Ill., for appellant.
The court erred in granting the principal instruction asked for by the plaintiff as follows: "This court instructs the jury for the plaintiff, that if you believe from the evidence that defendant delivered to plaintiff a ticket from Jackson, Mississippi, to Spanish Fort, Mississippi, a station on one of its lines of road, and if you further believe from the evidence that the ticket agent of defendant routed the plaintiff by way of Vicksburg and Kelso, also stations on its lines and if you further believe from the evidence that the defendant had no trains for carrying passengers running on the line from Kelso to Spanish Fort because of overflow or high water being over its tracks, and you further believe from the evidence that this condition had existed for some weeks, and you further believe from the evidence that plaintiff was carried by Vicksburg to Kelso and put off of the train without warning from the defendant and you further believe from the evidence that she had to remain at Kelso in the cold and rain until late in the afternoon when she was taken aboard another of defendant's trains and carried back to Jackson and routed by way of Yazoo City, and you further believe from the evidence that she was put off at Yazoo City, some distance from her destination, then the defendant was negligent in its duty owed the said plaintiff as a passenger, and if you further believe from the evidence that said negligence was the proximate cause of the injury, if any, to plaintiff, then it is your sworn duty to find a verdict for the plaintiff and assess her damages in such sum as will compensate her therefor warranted by the evidence, not to exceed the amount sued for."
The instruction was error because some of its assumptions are without support in the record.
The instruction further assumed that plaintiff was "put off at Yazoo City, some distance from her destination." There is no proof whatever to sustain this.
Defendant asked an instruction reading as follows: "The court instructs the jury for the defendant that if you believe from the evidence that any witness who has testified in this case is interested in the result of this suit as a party or otherwise, then, in determining the credit to be given such witness, the jury may take into consideration such interest as the evidence shows such witness has, together with all the other facts and circumstances disclosed by the evidence, if any, which will aid the jury in arriving at and determining the credit to which the testimony of such witness is entitled."
It is difficult to understand why the learned Circuit Judge refused this instruction. A vital point in the case was the question of fact as to whether the conductor going north from Vicksburg, on contacting the plaintiff on his train, told her that the "Mud Line" trains were not running and urged her to continue on his train to Cary where she could have a comfortable depot in which to wait for the southbound train that afternoon. The plaintiff denied that the conductor said anything to her about Cary but told her that Kelso was "as far as my ticket would carry me" and that he did not know "if the train was running" to Spanish Fort. The conductor testified that he told her the train from Kelso to Spanish Fort was not running and that the best thing for her to do was to go to Cary and there wait until No. 23 that afternoon, a southbound train. He added, "she got off after I told her not to get off" while he was working in another part of the train. All this presented a sharp issue of fact which was most material in determining the amount of damages recoverable by plaintiff.
It is, of course, wholly unnecessary to argue the proposition that the interest of a witness in the result of a suit being tried is a fact which the jury should take into consideration in determining the credit to be given to such witness.
Section 1527, Code of 1930; Buckley v. State, 62 Miss. 705; Woods v. State, 67 Miss. 575.
Clements Clements, of Rolling Fork, for appellee.
The appellant argues that the instruction complained of is error because some of its assumptions are without support in the record, and that one of the assumptions was that: "she had to remain at Kelso in the cold and rain until late in the afternoon."
We take it that the record clearly shows that she was exposed to the elements, for the reason that the open pagoda which was used as a station, and put there by the appellant for that purpose was nothing more than a shed, having a top but no side walls, and it being a small shed, certainly it could not be said that just because there was a small roof over their heads that in cold, raw, and rainy weather, appellee and her children could stay comfortably warm, or even keep dry.
Appellant also objects to the instruction because they say it contained the assumption that she was "put off the train without warning from the defendant." We would like to call the court's attention to the fact that this particular part of the instruction referred to the appellee being put off the train at Kelso, a part of which we quote: "And you further believe from the evidence that plaintiff was carried by Vicksburg to Kelso and put off of the train without warning from the defendant and you further believe from the evidence that she had to remain at Kelso in the cold and rain until late in the afternoon."
It is in evidence that appellee was instructed by appellant's agent at Jackson to go to Kelso and there get off and catch the Mud Line train to Spanish Fort. It is also in evidence that the conductor on the train from Vicksburg to Kelso did not tell appellee to remain on the train or that the Mud Line train was not running, but did tell her that Kelso was as far as her ticket would carry her, and that she could get off there and catch the Mud Line train, if it ran. It is true that this part of the testimony is in conflict, and we submit that it is the only conflict of the testimony in the entire record, and the appellee had a right to submit in her instruction to the jury her side of the case, and to leave it in their hands as to whether or not she or the appellant's testimony should receive the most credit.
We submit there are no assumptions of fact in the instruction, and that it is not objectionable as containing any such assumptions, for the reason that there is evidence in the record warranting the inference of the facts embraced in the hypothesis of the instruction if the jury believed them and the plaintiff had a right to submit a hypothesis containing the facts which are in evidence, or the whole evidence in the case tended to prove.
I.C.R.R. v. Cole, 113 Miss. 896.
Defendant's instruction was properly refused.
The court properly refused the instruction asked by the defendant for two reasons. First, it is an instruction upon the weight of the evidence which is inherently error as has been held by a long line of decisions in this court, and, second, it does not state the law.
Section 1527, Code of 1930.
The statute fixes the competency of parties to the suit and interested witness and provides a rule or guide by which the court or jury shall weigh the testimony given by such witness. And appellant's instruction did not set out in full the provision of the statute as they are bound to do when giving an instruction upon such a statute. Appellant's instruction did not tell the jury that the plaintiff was a competent witness in her own behalf, nor that any interested witnesses were competent, nor did the instruction tell the jury that they were required to weigh the testimony of such interested party as in view of the situation of the witness and other circumstances it might be fairly entitled to.
McDonough Motor Express v. Spiers, 177 So. 655.
The instruction asked by the appellant places too great a burden upon the appellee who naturally, being the plaintiff, was a greatly interested party, and the instruction in effect tells the jury that they may disregard entirely all of the testimony of the plaintiff simply because she is an interested party in the law suit, and such is not the law.
Ellis v. Berry, 145 Miss. 652; Section 1527, Code of 1930; Buckley v. State, 62 Miss. 705; Woods v. State, 76 Miss. 575.
Argued orally by R.L. Dent, Jr., for appellant, and by W.H. Clements, for appellee.
On the verdict of a jury, Sarah Alexander, appellee, recovered a substantial judgment for damages against the Yazoo and Mississippi Valley Railroad Company, appellant. Recovery was had upon the following facts:
On Friday, March 26, 1937, appellee desired to return to her home at Spanish Fort, Miss.; she had been in Jackson as a refugee from high water under the care of the Red Cross. On that morning, having an order for a ticket which she presented to the ticket agent at Jackson, she was told by him that her route would be via Vicksburg. She rode to Vicksburg, thence north towards Kelso, at which point she disembarked, to be transported on what is called the "Mud Line" to Spanish Fort, her point of destination. She said that the conductor told her he did not know whether the trains were running on the "Mud Line" or not. She arrived at Kelso at about 9:15 in the morning, there was no depot there, and she had to spend the day until about 4:45 in the afternoon in a pagoda, or shelter with no sides. It was raining intermittently, and she and her two children traveling with her became wet and cold. At 4:45 the same afternoon she was transported back to Jackson via Vicksburg. She remained in the depot in Jackson until 6 o'clock on the morning of the 27th, when she took a train for her home via Yazoo City. She left the train at Yazoo City, remaining in the depot there from 9 a.m. until 6 p.m. Her purpose in leaving the train at Yazoo City is not disclosed by this record. She was about four months advanced in pregnancy, had felt pains in her stomach on the train, and while in the depot at Yazoo City, about 2:30 in the afternoon, there was an occurrence which presaged premature childbirth. She suffered pain during that day, and at 6 o'clock she found friends who transported her in a truck to Anchorage and then on to Holly Bluff, where she stayed until Monday morning, when she again boarded a train and was carried to a station near Spanish Fort, where she chose to leave the train. About a week later she had a miscarriage and finally, on the advice of her physician, was sent to the Charity Hospital in Vicksburg, being threatened with septicemia.
The only sharp conflict in the evidence was that the conductor of the train from Vicksburg north testified that he told appellee to remain on the train and get off at Cary, north of Kelso, where there was a depot and she could be returned via Vicksburg to Jackson, as the water prevented trains running from Kelso to Spanish Fort. Appellee denied this and said the conductor told her that her ticket entitled her to ride to Kelso.
The attending physician testified that the exposure and the wait at Kelso might have brought about the subsequent miscarriage.
It is contended that the court erred in granting the following instruction for the plaintiff: "This court instructs the jury for the plaintiff, that if you believe from the evidence that defendant delivered to plaintiff a ticket from Jackson, Mississippi, to Spanish Fort, Mississippi, a station on one of its lines of Road, and if you further believe from the evidence that the ticket agent of defendant routed the plaintiff by way of Vicksburg and Kelso, also Stations on its lines and if you further believe from the evidence that the defendant had no trains for carrying passengers running on the line from Kelso to Spanish Fort because of overflow or highwater being over its tracks, and you further believe from the evidence that this condition had existed for some weeks, and you further believe from the evidence that plaintiff was carried by Vicksburg to Kelso and put off of the train without warning from the defendant and you further believe from the evidence that she had to remain at Kelso in the cold and rain until late in the afternoon when she was taken aboard another of defendant's trains and carried back to Jackson and routed by way of Yazoo City, and you further believe from the evidence that she was put off at Yazoo City, some distance from her destination, then the defendant was negligent in its duty owed the said plaintiff as a passenger, and if you further believe from the evidence that said negligence was the proximate cause of the injury, if any, to plaintiff, then it is your sworn duty to find a verdict for the plaintiff and assess her damages in such sum as will compensate her therefor warranted by the evidence, not to exceed the amount sued for." (Italics ours.)
We think the giving of this instruction on behalf of the plaintiff was reversible error. There is no evidence in this record that tends to show that the appellee did not voluntarily leave the train at Yazoo City. There is no evidence as to the distance from Yazoo City to the point of her destination, in fact, the evidence tended to show that she left the train from choice and intended to secure a ride, across the country with friends, from Yazoo City to her destination. At least there is nothing in the record to show what caused her to leave the train at Yazoo City and remain there all day. The latter part of the instruction told the jury that the occurrence at Yazoo City might be found to be a part of the negligence attributed to the railroad and sued for by the appellee. The instruction is without any evidence to support it, and on the close question of fact put an additional burden upon the railroad.
In the state of the record there is no proof tending to show any duty imposed upon the railroad by virtue of the fact that appellee left the train and remained at Yazoo City. Bank of Newton v. Simmons, 96 Miss. 17, 49 So. 616; Hooks v. Mills, 101 Miss. 91, 57 So. 545; Yazoo Railroad Co. v. Dyer, 102 Miss. 870, 59 So. 937; Western Union Telegraph Co. v. Robertson, 109 Miss. 775, 69 So. 680.
We think the following instruction, refused the defendant, should have been given: "The court instructs the jury for the defendant that if you believe from the evidence that any witness who has testified in this case is interested in the result of this suit as a party or otherwise, then, in determining the credit to be given such witness, the jury may take into consideration such interest as the evidence shows such witness has, together with all the other facts and circumstances disclosed by the evidence, if any, which will aid the jury in arriving at and determining the credit to which the testimony of such witness is entitled."
There was a sharp issue of fact between the testimony of the appellee and appellant's conductor, so that this is not a case where a single person would be pointed out by the instruction. Section 1527, Code of 1930, was fairly reproduced in this instruction. It was first approved in the case of Allen v. Lyles, 35 Miss. 513. The substance of this instruction has been approved in criminal cases such as Callas v. State, 151 Miss. 617, 118 So. 447, and is not rendered objectionable by section 586, Code of 1930, there being more than two witnesses testifying to material facts at issue in the case.
Reversed and remanded.