Nichols v. Gulf & Ship Island Railroad , 83 Miss. 126 ( 1903 )

Truly, J.,

delivered tbe opinion of tbe court.

It is not necessary to examine or discuss in detail tbe numerous instructions given for tbe appellee by .tbe court below, nor tbe many objections urged by appellant thereto. Under any view of tbe facts of this case, as developed by tbe record, tbe right result was reached and tbe verdict must be approved. Granting that there was error in tbe instructions for appellee, this cannot avail tbe appellant, because no other verdict could rightfully be sustained.

This is not a case in which tbe statutory presumption of negligence can be invoked. (See numerous cases cited in brief for appellee.) Where all tbe circumstances connected with an injury resulting from tbe running of a railroad train are in evidence, this removes all necessity for resorting to legal presumption, because tbe presumption must always give way to proof. In this case all tbe circumstances attending upon tbe accident are in proof by tbe testimony of eye witnesses; and from that proof it is indisputable that the tragic event was tbe result of appellants intestate’s own recklessness, and this com elusion is borne out by bis own story, repeatedly told, after tbe event.

To state tbe case most strongly for tbe intestate of appellant, be was a licensee, and, as such, charged with tbe duty of using ordinary care to avoid injury. Being familiar with tbe operation of the railroad trains upon tbe pier where tbe accident happened, be should not have ’recklessly disregarded tbe information which be possessed and voluntarily placed himself in a position of obvious danger, as bis own statement shows that be did, A licensee cannot cast prudence to tbe winds and rely on tbe care of others to watch over and protect him. This is a more glaring case of contributory negligence on tbe part of a licensee than is tbe case of Murdock v. Railroad, 77 Miss., 487, and in that case it was held that tbe peremptory instruction for tbe railroad was correctly given. (See also Railroad Co. v. Lee, 71 Miss., 895; Railroad Co. v. Arnola, 78 Miss., 787.) The peremptory instruction in this case asked for by defendant of the court below should have been granted. Unless the doctrine of contributory negligence is to be abolished entirely, this verdict must be approved.

During the progress of the trial, without legal obligation upon them, and after the decision of the court below in their favor, upon this point, appellant, Sylvester Nichols, individually, but not as administrator, gave a bond with two sureties to secure the costs of the proceeding. Upon the rendition of verdict in favor of defendant, counsel for appellant, as provided by § 881, Code 1892, asked and obtained a certificate from the court that there was probable cause for the bringing of this suit; but, notwithstanding the granting of this certificate, judgment was rendered against the sureties on said cost bond for the costs incurred. In this the trial court erred. Section 946, Code 1892, refers to bonds required by operation of law to be executed in any legal proceedings will not permit the obligors to jilead any irregularity or defect in form, or the manner of execution. That section has no application to the instant case. This was a bond, not required by law, but voluntarily given by the obligors, in a legal proceeding, and being voluntarily given, the sureties had the power to limit their liability as they might desire; and they did limit their liability as shown by the terms of the obligation, to a surety-ship for any costs that might be awarded against Sylvester Nichols individually. The condition of this bond was never broken, no costs having been legally adjudged against Nichols, individually, and the sureties bound themselves only to that extent. As no costs could be legally assessed against Nichols after the granting of the certificate aforesaid, it necessarily follows that no judgment for costs could be legally entered against his sureties. Therefore, while the verdict of the jury is approved and the judgment in favor of the Gulf <& Ship Island Railroad Company affirmed, the judgment against the sureties on the cost bond is hereby set aside and vacated. .

Judgment amended and affirmed.