Opinion
No. 34116.
April 22, 1940. Suggestion of Error Overruled June 3, 1940.
1. DAMAGES.
The rule that a person is not entitled to recover damages for such harm as he could have avoided by use of due care after the commission of the wrong, applies to all injuries, wrongfully inflicted, whether by means of a tort or the breach of a contract, and deals not with conduct of plaintiff contributing to his injury, but with his failure to avoid the consequences of his injury after it has been inflicted, to avoid or diminish the damages resultng from his injury.
2. DAMAGES. Negligence.
Negligence contributing to the infliction of an injury and negligently failing after infliction of injury to reduce damages caused thereby, are governed by different rules producing different results, and the first of the rules, at common law, determines the existence of a cause of action in plaintiff, and the second determines the amount of damages plaintiff can recover.
3. RAILROADS.
Where railroad section workers set fire to grass between main line track and spur track and left without completely extinguishing fire, and thereafter gin foreman put out some but not all of the fire and left the premises, and later in the afternoon fire crossed spur track and destroyed gin house and plant, the gin foreman's conduct was governed by law relating to negligence contributing to the infliction of an injury.
4. NEGLIGENCE.
Where railroad section workers set fire to grass between main line track and spur track and left without completely extinguishing the fire, and thereafter gin foreman put out some but not all of the fire and left the premises, and later in afternoon fire crossed spur track and destroyed gin house and plant, in action for destruction of gin house and plant, railroad was not entitled to directed verdict of no liability, since under statute the contributory negligence, if any, of gin foreman would not bar recovery (Code 1930, sec. 511).
5. NEGLIGENCE.
Where railroad section workers set fire to grass between main line track and spur track and left without completely extinguishing the fire, and thereafter gin foreman put out some but not all of the fire and left the premises, and later in afternoon fire crossed spur track and destroyed gin house and plant, negligence, if any, of gin foreman did not bar owner of gin from recovering but only entitled railroad to diminution of damages sustained by the owner of gin in proportion to amount of negligence attributable to the gin foreman (Code 1930, sec. 511).
ON SUGGESTION OF ERROR. (Division A. June 3, 1940.) [ 196 So. 503. No. 34116.]DAMAGES.
Where railroad section workers set fire to grass between main line track and spur track and left without completely extinguishing fire, and later fire crossed spur track and destroyed gin house and plant, if fire had already reached gin premises and was on gin owner's private property at time of gin foreman's asserted negligence in not intercepting fire, owner would be entitled to recover at least nominal damages, and that in itself was enough to avoid a peremptory instruction for railroad (Code 1930, sec. 511).
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON Judge.
Dent, Robinson Ward, of Vicksburg, V.W. Foster and E.C. Craig, both of Chicago, Illinois, and Lucius E. Burch, Jr., Frank F. Roberson, and Clinton H. McKay, all of Memphis, Tenn., for appellant.
Appellee's gin manager, B.V. Saxon, with knowledge of situation, had opportunity to prevent all damage and loss but failed to do so.
Fire spread across spur track to gin property along a narrow path. It could have been controlled by slight effort and at no expense.
Appellee may not recover damages which could have been avoided by the exercise of due care on her part.
The rule disallowing damages for avoidable consequences is universal.
Am. Digest, Century Ed., Damages, Secs. 119 et seq.; Am. Digest, Dec. Ed., Damages, Sec. 62; Am. Digest (2 Dec. Ed.), Damages, Sec. 62; Am. Digest (3 Dec. Ed.), Sec. 62; Am. Digest (4 Dec. Ed.), Sec. 62; General Digest, Annual Sec. 62; 4 Am. Law Institute's Restatement of the Law, "Torts," Sec. 918; 15 Am. Jur. 439, Sec. 40; 17 C.J. 776, Sec. 101; 1 Sutherland on Damages, (4 Ed.), p. 318, Sec. 90; 1 Sedgwick on Damages, 390, Secs. 204 and 214-c.
The rule of avoidable consequences is not related to contributory negligence.
4 Am. Law Institute's Restatement of the Law, "Torts", Sec. 918, Comment a; Crosby v. Plummer, 111 Me. 355, 89 A. 145; Western Real Estate Trustees v. Hughes, 172 Fed. 206; Dippold v. Cathlamet Lbr. Co., 111 Or. 199, 225 P. 202; Iseman v. Burnell, 125 Me. 57, 130 A. 868.
The defense is available under plea of the general issue.
Grayson v. Brooks, 64 Miss. 410, 1 So. 482; Yazoo, etc., R. Co. v. Sultan, 106 Miss. 373, 63 So. 672.
This court has always recognized and applied the avoidable consequences rule.
Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349; North Am. Accident Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; Mars v. Hendon, 178 Miss. 157, 171 So. 880; Gilbert v. Crosby, 160 Miss. 711, 135 So. 201, 142 So. 507; Scott Green v. Green River Lbr. Co., 116 Miss. 524, 77 So. 309; Yazoo, etc., R. Co. v. Sultan, 106 Miss. 373, 63 So. 672; New Orleans, etc., R. Co. v. Echols, 54 Miss. 264; Yazoo, etc., R. Co. v. Ragsdale, 46 Miss. 458; Friedlander v. Pugh, Slocomb Co., 43 Miss. 111.
The rule is applicable in cases involving fire set out on railroad rights of way.
51 C.J. 1254, Sec. 1452; 3 Elliott on Railroad (3 Ed.), p. 781, Sec. 1762; Louisville, etc., R. Co. v. Sullivan Tbr. Co., 138 Ala. 279, 35 So. 327; Stewart v. Quincy, etc., R. Co., 142 Mo. App. 322, 126 S.W. 1003; Smith v. Ogden, etc., R. Co., 33 Utah 129, 93 P. 185; Wisconsin, etc., Lbr. Co. v. Scott, 167 Ark. 84, 267 S.W. 780; Louisville, etc., R. Co. v. Jackson, 123 Ark. 1, 184 S.W. 450; Talley v. Courter, 83 Mich. 473, 53 N.W. 621; Aune v. Austin-Williams Tbr. Co., 52 Wn. 356, 100 P. 746; Eaton v. Oregon Ry., etc., Co., 31 Or. 342, 49 P. 879; Moses Sons v. Lockwood, 295 Fed. 936; Denver, etc., R. Co. v. Morton, 3 Colo. App. 155, 32 P. 345; Ide v. Boston, etc., R. Co., 83 Vt. 66, 74 A. 401; Toledo, etc., R. Co. v. Pindar, 53 Ill. 447, 5 Am. Rep. 57; Hogle v. New York, etc., R. Co., 28 Hun (N.Y.), 363; Harrison v. Mo. Pac. R. Co., 88 Mo. 625.
Plaintiff must accept responsibility for Saxon's failure to do what the law required of him.
Ill., etc., R. Co. v. McKay, 69 Miss. 139, 12 So. 447.
On the undisputed proof appellant was entitled to a peremptory instruction at the close of all the evidence.
4 Am. Law Institute's Restatement of the Law, "Torts," Sec. 918; North Am. Accident Ins. Co. v. Henderson, 180 Miss. 395, 177 So. 528; 3 Elliott on Railroads (3 Ed.), p. 781, Sec. 1763; Louisville, etc., R. Co. v. Sullivan Tbr. Co., 138 Ala. 279, 35 So. 327; Smith v. Oregon, etc., R. Co., 33 Utah 129, 93 P. 185; Wisconsin, etc., Lbr. Co. v. Scott, 167 Ark. 84, 267 S.W. 780.
Chaney Culkin, of Vicksburg, and Clements Clements, of Rolling Fork, for appellee.
Appellant cannot raise and rely in Supreme Court on point not raised or relied on in lower court.
Huston v. King, 80 So. 779, 119 Miss. 347; Anderson v. Lee, 48 Miss. 253; A.H. George Co. v. L. N.R.R., 40 So. 486, 88 Miss. 306; Adams v. City of Clarksdale, 48 So. 242, 95 Miss. 88; Estes v. Memphis C. Ry., 119 So. 199, 152 Miss. 814; Miss. Valley Trust Co. v. Brewer, 128 So. 83, 157 Miss. 890; Mitchell v. Finley, 137 So. 330, 161 Miss. 527.
Nor will the Supreme Court review a case upon some ground or theory not submitted to the jury.
Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Miss. Power Light Co. v. May (Miss.), 161 So. 755; Anderson v. Maxwell, 48 So. 227, 94 Miss. 138; Tolbert v. Melton, 9 S. M. (17 Miss.) 9.
The lower court was right in refusing peremptory instruction and submitting case to jury and also refusing special instruction complained of by appellant, because special instruction does not present the law in Mississippi.
Heafner v. C. G.R. Co., 190 So. 1; St. Ry. Power Co. v. McEachern, 109 Miss. 380; Sec. 511, Code 1930.
Contributory negligence is not bar to recovery for personal injuries or damage to property. If appellant desired to invoke this should have submitted proper instruction covering it.
Lindsey Wagon Co. v. Nix, 108 Miss. 814; Goodman v. Lang, 158 Miss. 204; M. O.R.R. v. Campbell, 114 Miss. 803; G. S.I.R. Co. v. Saucier, 139 Miss. 497; Packing Co. et al. v. Banning, 155 Miss. 376; Brister et al. v. I.C.R. Co., 84 Miss. 33.
It is admitted that the appellant's section crew set out these fires, and that none of the crew came back to see anything about it or make any inspection. The property of appellee was burned by fire spreading from the right-of-way. Certainly it was a question for the jury to pass on as to whether the appellant was guilty of any negligence which proximately caused the injury and damage in this case, or at least contributed thereto, or they should believe that the appellee, through her servant, was guilty of contributory negligence, which we deny.
G. S.I.R. Co. v. Saucier, 139 Miss. 497; Packing Co. et al. v. Branning, 155 Miss. 376.
Under our contributory negligence statute, the appellee, Mrs. Fields, did not assume any risk, and if the appellant desired to take advantage of the comparative negligence statute, it was its duty to ask an instruction covering same, and it didn't do it. Or it should have set out in the instruction it did ask the necessary requirements of the law, and based it upon the ground of the sole proximate cause of the appellee, which it did not do, before it could tell the jury by instruction that it should bring in a verdict for the defendant.
Byrnes v. City of Jackson, 140 Miss. 656.
We respectfully submit that the law relied on by the appellant in its brief, is not applicable to the case at bar, neither to the facts and circumstances, nor is it the law requested by it. And that this was a question for the jury to pass on as to whether or not the negligence of the railroad was either the proximate cause or the contributing cause, and if either, the plaintiff was entitled to recover. And that if there was contributory negligence, which we deny, on the part of the appellee, the failure of the appellant to invoke the rule under Section 511, Code of 1930, in the lower court, was its own fault and cannot now be availed of.
Argued orally by C.H. McKay, for appellant, and by W.H. Clements, for appellee.
This appeal is from a judgment against the appellant for negligently permitting fire set out by it on its premises to enter the premises of the appellee and consume a cotton gin house and plant thereon.
The appellant's railroad at Anguilla runs north and south, and the appellee's gin is on the west side of the railroad. A spur-track leaves the main line of the railroad about two hundred yards north of the gin and runs south, passing within a few feet of the gin. The ground between the main line and this spur-track was covered with dry grass and weeds, as was also the ground on which the gin was. About nine A.M. of the day on which the gin was burned, the appellant's section foreman, with several helpers, set fire to the grass between the two tracks, for the purpose of clearing the ground therefrom. They left there around eleven A.M., without, as the event determined, completely extinguishing the fire after the grass and weeds between the tracks had been consumed. At about twelve A.M., other parties, including Saxon, the appellee's gin foreman, saw fire in several places along the spur-track, but not on the appellee's premises. Saxon put out some but not all of the fire and left the premises. He could have easily put all of it out, and we will assume that danger of its crossing the spur-track was then apparent. Later in the afternoon, the fire crossed the spur-track and destroyed the appellee's gin house and plant.
Counsel for the appellant argue only two of their assignments of error.
1st. That the court below should have granted the appellant's request for a directed verdict of no liability; and if mistaken in this, that 2nd, the court erred in refusing another instruction requested by the plaintiff.
The rule of law invoked by the appellant in support of both of these instructions is that requiring one, after being injured by another, to exercise reasonable care to diminish the damage caused him by the injury. The argument is that, Saxon, the appellee's gin foreman, could have prevented the burning of the appellee's gin by putting out the fire before it crossed the spur-track and entered the appellee's premises and thereby avoided the resulting damage to the appellee's property, for which conduct of her servant the appellee is responsible.
The rule invoked is that stated in 4 Rest. Torts, Sec. 918: "Except as stated in Subsection (2), a person injured by the tort of another is not entitled to recover damages for such harm as he could have avoided by the use of due care after the commission of the tort."
This rule applies to all injuries wrongfully inflicted, whether by means of a tort or breach of a contract, and deals not with conduct of a plaintiff contributing to his injury, but with his failure to avoid the consequences of his injury after it has been inflicted, to avoid or diminish the damages resulting from his injury. Injury, strictly speaking, "means something done against the right of the party, producing damage, whereas damage is the harm, detriment, or loss sustained by reason of the injury." 1 C.J.S., Actions, section 15.
The infliction of his injury constitutes a plaintiff's cause of action, and his damage is the amount of money recoverable by him therefor. Negligence contributing to the infliction of an injury, of course, necessarily contributes to the damage sustained therefrom, the injury being the cause of the damage, but negligence contributing to the infliction of an injury, and negligently failing after the infliction of an injury to reduce the damage caused thereby, are governed by different rules producing different results. The first of these rules, at common law, determines the existence of a cause of action in the plaintiff — provides a bar thereto; and, the second determines the amount of damages the plaintiff can recover. The distinction between these two rules is set forth in Comment a, section 918, vol. 4, Rest. Torts, invoked by the appellant. It is there said: "The rule stated in this Section is to be distinguished from the rules stated in sections 463-496, vol. II, dealing with contributory negligence. As there stated, a person threatened with harm from the negligent conduct of another is not entitled to recover for damages from such other if he failed to use due care to avoid such harm, this being subject to the various qualifications stated in those Sections. . . . On the other hand, the rule stated in this Section applies only to the diminution of damages and not to the existence of a cause of action."
The negligence with which Saxon, and through him the appellee, is here charged, is a failure to exercise due care to prevent the fire from crossing the appellant's spur-track into the premises of the appellee and destroying her gin — in failing to exercise due care to prevent the infliction of the appellee's injury after he discovered the danger thereof. His conduct therefore is governed by the law relating to negligence contributing to the infliction of an injury; Illinois C.R. Company v. McKay, 69 Miss. 139, 12 So. 447; 51 C.J. 1181, section 1309.
The common law rule that contributory negligence bars a recovery for an injury to the person or property has been changed in this State by Sec. 511, Code of 1930, which provides: "In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property." This section precludes the appellant from a directed verdict of no liability. In passing on this instruction, we have assumed, but merely for the purpose of the argument, that Saxon's conduct contributed to the infliction of the appellee's injury.
The other instruction refused the appellee submitted the question of Saxon's negligence to the jury and instructed it to return a verdict for the appellant if they believed "that the gin was burned as a result of the failure of the plaintiff's employee to put out said fires after discovering their being in close proximity to the gin. . . ." This instruction was properly refused for the reason that, as hereinbefore said, Saxon's negligence, if any, did not bar the appellee from recovery but only entitled the appellant to a diminution of the damages sustained by the appellee in proportion to the amount of negligence attributable to Saxon.
Affirmed.
ON SUGGESTION OF ERROR.
In our original opinion we called attention to the difference between the rule when an injured party fails to avoid further damage so far as he reasonably can after the injury has in part been inflicted, and the rule which applies when the injured party fails to take reasonable care to avoid a threatened injury but no part of which has yet happened at the time of his negligent failure; and we said that in the latter case the negligence is contributory and, under our statute, Section 511, Code 1930, affords no complete defense in favor of the original wrongdoer.
Appellant in its suggestion of error now contends that we were under a mistaken impression when we said that, at the time of the asserted negligence on the part of Saxon, appellee's foreman, in not intercepting the fire, it had not at that time reached appellee's premises; and appellant now urges that the testimony is undisputed that at the time the fire had already reached and was upon appellee's property adjacent to the gin. We here quote from page 17 of appellant's original printed brief: "None of plaintiff's property had been touched by the fire up to the time Saxon left the premises." So it is that appellant has taken one position as to the facts in its original argument, and the reverse position in respect to the same facts in its suggestion of error.
But the reversed position which appellant now takes does not aid appellant, under the record as made, for if the fire had already reached the gin premises and was upon appellee's private property, she would in that case be entitled to recover at least nominal damages, and that in itself is enough to avoid the peremptory instruction. See the recent case, Brewer v. Universal Credit Co., Miss., 192 So. 902, and the authorities therein cited. The only instructions requested by the appellant were those which proposed an absolute bar to any right of recovery at all; there was none given or requested which submitted any theory of diminution of damages under either of the rules mentioned herein.
Suggestion of error overruled.