Yazoo & Mississippi Valley Railroad v. Roberts , 88 Miss. 80 ( 1906 )

Truly, J.,

delivered the opinion of the court.

In the indefinite state of this record we are unable to say that the ruling of the court in permitting the question objected to to be propounded to the prospective jurors upon the voir dire examination was prejudicial error. It does not certainly .appear that the objectionable question was answered by but one of the jurors, or if answered by the others the record is silent as to what their response was, and for naught that appears to the contrary it may have been favorable to the appellant. We see no objection to the question finally propounded to 'the jurors after the first question had been by consent of the court withdrawn. Parties to a litigation have the right for their guidance in the exercise of their peremptory challenges to ascertain the mental attitude occupied by the individual jurors towards the vital question involved in the controversy. One suing in damages, and predicating right of recovery on the theory that the defendant is liable to the infliction of punitory ■damages, has the right to ascertain by proper inquiries, not whether the juror will award punitory damages under any given state of facts, but whether he is opposed on principle to the awarding of punitory damages under any state of facts. The same privilege upon the converse of the proposition belongs to the defendant. lie may in a proper way probe the mind of the juror to enable him to determine advisedly his selection of the juror, to learn whether he is prejudiced or biased in any way, or whether he will be guided by the law announced by the court in assessing damages, should such be legally allowable.

We are unable to agree with the 'contention of the appellant that it was entitled to a peremptory instruction upon the theory that its negligence was not the proximate cause of the injury complained of. Some confusion has crept into, the books with regard to what constitutes the proximate cause of injury where more than one cause or element of negligence contributes to the accident. It is at best, generally, a difficult question to determine which concurring act is the remote, and which is the proximate, .cause. The instant case, in our judgment, however, furnishes no problem of difficult solution in this regard. The action which made the accident possible was the kicking switch. This was the negligent act originating' the train of circumstances culminating in the injury. TIad there been no kicking switch, no injury could have happened, even though everything else had transpired in its proper sequence subsequent to the switching and prior to the injury. The breaking of the brake bar did nothing to- increase the danger of accident. This was simply a failure on the part of one of the mechanical appliances to avoid the accident, made possible bj the original negligence in making the kicking switch.

We think the contention of appellant that under no view of the facts of this case was punitory damages recoverable is unsound. In the light of this record we are constrained to say that there were enough elements of recklessness in the handling of this passenger coach, known to be occupied by passengers, to authorize the submission to the jury of the question whether said conduct did not in their judgments constitute gross negligence. The instructions for appellee complained of do no more. •

Nor do we think that the fact that the passengers boarded the train before the train was ready to start upon its run such negligence as could debar them of recovery. They were prospective passengers, the schedule time for the departure of the train had arrived, the coach was on the track ready for their reception, and they were permitted to board the train with the knowledge and tacit acquiescence of the employes in charge. We think these facts establish the relation of carrier and passenger. At most, it can but be said that in so boarding the train they were guilty of “mere contributory negligence,” and this is not sufficient to defeat a recovery where the injury is caused by a kicking switch made within a municipality, as was the case in the instance here under review. Section 3548, Code 1892.

Affirmed.