Mississippi Central Railroad v. Hardy , 88 Miss. 732 ( 1906 )

Whitfield, C. J.,

delivered the opinion of the court.

A patient and careful examination of the entire testimony in this record makes it perfectly obvious that the proximate cause of the injury was the split switch and the defective trucks and flange. The rails did not fit. They had to be knocked together. After they were locked they still did not fit. The trucks were out of order, and the flange of the wheel worn. The derailment was caused by the improper condition of the track at the switch point and the defective trucks and flange. It was the undelegable duty of the master to have the track in safe condition. A careful and repeated examination of the instructions on both sides and of the declaration, taken in connection with this testimony, makes it very clear that the plaintiff proceeded upon the theory of the negligence of the company itself, and not the negligence of any fellow servant. The evidence makes it plain that the adjustment of the switch referred to in the declaration was not an adjustment by a fellow servant; but the adjustment referred to ivas the fitting of the rails together so that they would not split, so that there could be no split switch — an adjustment synonymous with construction. The declaration, after stating five specific grounds, expressly sums up by saying that the injury was due wholly to the negligence of the defendant; that is, the company itself. Looking back over the completed record, this case cannot be said to fall within the principles announced in the Abrams case, 84 Miss., 456 (36 South. Rep., 542). Whilst the declaration might have been more felicitously phrased, so as to say with more perspicacity that the adjustment referred to was the construction of the switch, yet since all the testimony and the whole course of the trial on the evidence and on the instructions show this plainly, the case is thus separated by a great distance from the extraordinary irregularities condemned in the Abrams case. There is no difficulty here, as there was in that case, in ascertaining the true line on which the plaintiff’s case moved, from the declaration through the evidence and through the instructions to the verdict. Much is said about the train not being fully equipped with air, and much urged with reference to the injuries being due to the negligence of a fellow servant, and in regard to the adjustment of the switch, meaning by “adjustment” the improper handling of the switch by the employes charged with that duty, but the complete answer to all this is to be found in the fifteenth instruction given for the defendant itself, which is as follows: “The court further instructs the jury for the defendant that, although they should believe from the evidence that there ivas a car in this train not equipped with air brakes, yet if they believe from the evideuce that it was the duty of the brakeman of said train to couple the air brakes in the cars of said train, and because of the brakeman’s failure to perform this duty said air brake was not in use, then the defendant is not liable to the plaintiff because of any failure to have air brakes in use; that the brakemen on said train were felkw servants of said fireman, and the defendant is not liable to the plaintiff for any injury resulting from the negligence of the hrakeman 'on said train.”

Besides, the other instructions, taken as a whole, show that no liability was sought to be imposed by reason of the negligence of any fellow servant in any respect, That instructions, taken together, properly announce the rule that the defendant 'must provide safe ways and appliances. .There is no error in this respect. The seventh, eighth, twelfth and seventeenth instructions for defendant, as also the tenth, eleventh and nineteenth, cover this ground fully-. The criticism that in some of the instructions for the'plaintiff the negligence counted on is not the negligence alleged in the declaration is hypercritical. The tenth instruction for the defendant expressly charges the jury that the injury must "have resulted from the alleged negligence of the defendant.” No other negligence than the negligence alleged in the declaration — to wit, the negligence of the company itself— could have been referred to in the instructions for the plaintiff; but this instruction for the defendant expressly advises them of the fact, and the eleventh instruction for the defendant actually enumerates the specific grounds of negligence set out in the declaration. Instructions cannot be ..objected to separately with any justice. The instructions must be taken as a whole, as one body, and announce, not the law for the plaintiff or the defendant, hut the law of the case, and, so taken, if they reasonably advise the jury of the true principles applicable to the case made by the facts, that is all that is required as a guide for the twelve plain, practical men who sit in the jury box. Any other view would sacrifice substantial justice in a very large percentage of the cases appealed to this court.

The fourth instruction for the defendant was properly refused, because of a special reference to the testimony of the witness, Lee, and, besides, had been .abundantly covered by instructions 7, 12, 15 and 18 for the defendant. The fifth instruction was properly refused, because there is not a shred of evidence of any contributory negligence on tbe part of plaintiff, and so well satisfied was the defendant tbat be was not guilty of any contributory negligence tbat tbe defendant did not even plead contributory negligence. Contributory negligence is an affirmative defense. McMurtry v. Railway, 67 Miss., 601 (7 South. Rep., 401) ; Simms v. Forbes, 86 Miss., 412 (38 South. Rep., 546).

All tbe modifications in instructions Nos. 6,10, 11,15,17 and 19, asked by tbe defendant, were proper as shown by tbe testimony in tbe case. Tbe only serious comment needed to be made as to modifications, is as regards tbe modification of tbe eleventh instruction for tbe defendant by-the court, which modification consisted in adding these words: “(4) Tbat tbe switch where tbe derailment occurred wa.s not properly adjusted at tbe time of tbe accident, and tbat tbe failure to do so was tbe proximate cause of tbe injury to plaintiff.” Of course, this instruction and all tbe instructions were given by tbe circuit judge looking back over tbe case made by tbe evidence, and it was just as clear to him then, as it is to us now, tbat tbe adjustment of tbe switch made out by tbe evidence was its failure to fit up tight and close as it should have done, and not tbe handling of tbe switch by an employe. The instruction as asked was clearly erroneous, because it omitted absolutely tbe only real ground on which tbe plaintiff proceeded. If tbe defendant did not choose to use tbe instruction as modified, it should not have read tbe same to tbe jury, but should have stood upon tbe error in tbe modification, if error there was therein. This court said, in Railroad Company Suddoth, 70 Miss., 265 (12 South. Rep., 205): “One who has asked an erroneous instruction cannot assign for error its modification; for, if not content with it as modified, be should have declined to read it to tbe jury.” If tbe instruction bad been correct as originally asked, then a modification might have been insisted on as error; but it was erroneous as originally asked, and tbe modification made it correct as to tbe main point in the case. We may say in one word, without further detail as to the instructions, that a body of instructions probably were never given a defendant railroad company drawn with more consummate care or evidencing more profound knowledge of the law applicable to every phase of the defendant’s case. The defendant got all, and more than all, it was entitled to on the facts, and we do not think any reversible error can be found in the law of the case as charged by the learned judge below.

This brings us to the only other contentions we deem it necessary to notice. First, as to the admission of testimony regarding the plaintiff’s prospects of promotion. This testimony is as follows : “Q. State whether or not you had any promise of promotion by any officer of the company. (Objected to; overruled;, exception.) A. Nothing, only Mr. Bell, when I had the typhoid fever and got well and went to my boarding house — he was boarding at the same place — he says: T wish you had been well; I would have had you running an engine since you have been sick.’ Q. Did he ever say anything to you afterwards about that? A. Tes, sir; that he had put in another man. He said Í would have to wait awhile. Q. Tou would have to wait awhile before you could get an engine ? A. Yes, sir. Q. What was your object in hiring to the railroad company as a fireman ? A. The only purpose of it was to earn a living. The only purpose was, I wanted to become a locomotive engineer.” For the plaintiff it is insisted that the question whether plaintiff had any promise of promotion by any officer of the company was competent, and that the only thing that was wrong was the answer of the witness, which was not responsive to the question. We cannot concur in this view. We think the question as to a promise was not competent, as inquiring as to a matter entirely too speculative and remote, within the rule announced by the supreme court of the United States in Richmond & Danville R. R. v. Elliott, 149 U. S., on p. 268 (13 Sup. Ct., 837; 37 L. ed., 728). It is there said: “We think there was error in the admission of this testimony. It did not appear that there was any rule oil the part of the Central Company for an increase of salary after a certain length of time, or that promotion should follow whenever a vacancy occurred in a higher grade of service. The most that was claimed was that, when a vacancy took place, a subordinate, who had been, faithful in his employment and had served a long-while, had a chance of receiving preferment. But that is altogether too problematical and uncertain to be presented to a jury in connection with proof of the wages paid to those in such superior employment. Promotion was purely a matter of speculation, depending, not simply upon the occurrence of a vacancy, but upon the judgment, or even whim, of those in control. Of course, there are possibilities and probabilities before every person, particularly a young man, and a jury, in estimating the damages sustained, will doubtless always give weight to those general probabilities, as well as those springing from any peculiar capacities or faculties. But that is a different matter from proving to the jury the wages which some superior officer receives, and then exaggerating, in the minds of the jury, the amount of the damage which has been sustained, by evidence tending to show that there is a chance of plaintiff being promoted at some time to such higher office. It is enough to prove what the plaintiff has been in fact deprived of, to show his physical health and strength before the injury, his condition since, the business he was doing (Wade v. Leroy, 20 How. [U. S.], 34 [15 L. ed., 813] ; Nebraska City v. Campbell, 2 Black [U. S.], 590 [17 L. ed., 271] ; Vicksburg Meridian Railroad v. Putnam, 118 U. S., 545, 554 [7 Sup. Ct., 1; 30 L. ed., 257), the wages he was receiving, and perhaps the increase which he would receive by any fixed rule of promotion. Beyond that it is not right to go and introduce testimony which simply opens the door to a speculation of possibilities.” This is certainly sound doctrine, and we give it our hearty approval, but do not think-the principle announced finds application here as to the question objected to, for the reason that the witness distinctly answered, so far as any responsive answer was concerned, that no promise of promotion was made by any officer of the company. The jury, therefore, had before them the distinct and positive declaration of the plaintiff himself that no such promise was made to him with respect to promotion by any officer of the company. Having answered the question, the witness then went on to say— ■what was not responsive to the question — that a Mr. Bell, who is not shown to have held any office at all in the company, merely expressed the wish that he had been well, so that he might have had him running an engine during the time’ he had been sick. This part of the answer does not state that there was any promise — the witness had already said that there was none — but contained matters not responsive to the question, which, if the defendant wished to exclude, he should have made a motion to that effect.

All the other questions and answers set out above are not with respect to a promise, but along the same line of interrogation which had been previously addressed to the witness, Wainwright, subsequently to be noticed in this opinion. It seems very clear that the learned counsel who represented the appellant in the court below regarded the line of interrogation embraced in these very questions as being the same that was pursued with respect to the interrogatories and answers addressed to Wainwright, none of which was objected to. These latter interrogatories and answers of the plaintiff above set out, not-having been objected to below, cannot, of course, be objected to here. So that .the only thing which the defendant reserved below, so far as this testimony is concerned, was the single objection to the question whether plaintiff had any promise of promotion by any officer of the company, which question was. explicitly answered by the witness to the effect that no such promise had been made. The manifest difference, therefore, between the testimony in this case and the testimony in the case of Richmond & Danville R. R. v. Elliott, supra, shows plainly that there is nothing in this testimony to show any promise of any sort, and that, so far as the other questions and answers are concerned, no objection was reserved.' This falls far short of the testimony on this point in the case of Richmond & Danville R. R. v. Elliott, supra. The witness there was asked this question: “What were your prospects of advancement, if any, in your employment on the railroad, and of obtaining higher wages ?” And he answered that he thought that by staying with the company he would be promoted ; that in the absence of the yardmaster he had sometimes discharged his duties, and also in like manner temporarily filled the place of other employes of the company of a higher grade of service than his own; that there was a system by which you go in there as coupler, or train hand, or in the yard, and if a man falls out you stand a chance of taking his place; and that the average yard conductor obtained a salary of from sixty to seventy-five dollars a month. There is no evidence in the testimony objected to that this man had ever discharged the duties of any one higher in the service than himself, and especially is there no evidence of any system of promotion at all by this railroad. It is earnestly urged, however, that this testimony must be taken in connection with the previously delivered testimony of the witness, Wainwright. This witness, Wainwright, was permitted to testify that “he ran a locomotive for the Newman Lumber Company, and that the course of the training usually pursued by a man who wanted to become a locomotive engineer was to begin by firing a locomotive, and that a man had to fire two, three, or four years before promotion, but that promotion sometimes occurred more quickly on new roads, and that that was the only way now to secure such promotion, and that the pay of a fireman was from forty-five to one hundred dollars per month, and that of a locomotive engineer from eighty to one hundred and twenty-five dollars per month.” But the remarkable fact about this testimony is that the counsel for the defendant who tried this cause iu the court below allowed all this testimony to go to the jury without the slightest objection. Learned counsel who represent the defendant here cannot invoke the aid of this testimony, and, by adding it to the incompetent testimony we have referred to, make out of both, taken together, an available objection. He could only have done it if proper objection had been interposed to Wainwright’s testimony in the court below. To hold otherwise would be to permit the appellant to reverse the cause because of the force of the added testimony of Wainwright, which testimony the defendant permitted to go to the jury without any objection whatever. This, of course, cannot be done.

But it is insisted in the next place that there was evidence of the poverty of the plaintiff which ought not to have been permitted to goto the jury. In the cross-examination, the plaintiff was asked whether he did not work. ' He stated that he 'did not, but that a man wanted to go around, if he could not work. He was then asked: “What particular business made you go around so early?” and he answered: “I was in the house so long I wanted to get about. I was here so long I wanted to get to my father-in-law’s, in Scott county.” The object of this testimony was to show, if possible, what work or business, if any, the plaintiff had. On redirect examination, he was asked: “You stated in your cross-examination you went away from here about the 22d of April to your father-in-law’s. State to the court and jury why you left here and went to your father-in-law’s.” He answered, after the objection was overruled: “I left here because I had no business to make a living at, and didn’t have the means to stay here on. I have been living with my father-in-law since that time.” We think the question as to why he went to his father-in-law’s house was a perfectly competent question; it was simply a reexamination on the identical line of interrogation along which, as above shown, plaintiff had been examined. If the answer can be properly held to show with the clearness required to make it objectionable that he was a poor man, then it was clearly irresponsive to the question, and gave what the question did not call for, and defendant should have objected to the answer on that ground and moved to exclude it from the jury. No such objection was made. Certainly, where a question perfectly proper in itself is asked, and the only error consists in the witness making an answer utterly irresponsive and containing matter clearly objectionable, it is the duty of the party objecting to the answer to move to exclude that answer. But, in addition to this, we do not think the answer can be given the large significance learned counsel for appellant would have us to attach to it, as showing that the plaintiff was a poor man without property. In the case of Railway v. McLellan, 80 Miss., 708 (32 South. Rep., 283), it was said that the testimony in that case showed “that the plaintiff was poor and had no property and no money.” The testimony here does not, in any positive terms, show that the plaintiff was even poor, much less that he had no property and no money. • So large an inference as that of absolute poverty cannot justly be drawn from testimony on this point, so very scant and meager.

Lastly, it is insisted with great earnestness that the verdict is grossly excessive. The testimony shows that the plaintiff was a young man in vigorous health, working as a fireman; that he was twenty-four years old, married, and earning about forty dollars a month before the injury; that since the injury he had not earned four dollars; that he had tried a job of sawing with a cross-cut saw, but, having to stand on one foot, could not stand it, and had to give it up; that the injury was permanent, Dr. Ross, the railroad physician, so testifying; that one leg would always be shorter than the other, and crooked; that it took five minutes to get his head and neck from the timbers clinching them, and nearly choking him to death, and between two and three hours to get the timber away so as to free his leg and foot, which had been crushed; when released he was unconscious part of the time. It was the province of the jury, and the jury alone, to measure in dollars and cents tlie amount due him for physical and mental anguish and suffering, and, unless in a case where the verdict plainly shows that the jury must have been influenced by passion, prejudice or corruption, this court never interferes with their finding as to damages. The defendants secured an instruction, No. 19, which is as follows: “The court instructs the jury for the defendant, that in the event they do find that the defendant was alleged in the declaration, and that such negligence was the proximate cause of the injury, and that the plaintiff’s negligence did not contribute to his injury, and they find for the plaintiff, then they are the sole judges as to the amount of damages sustained by the plaintiff, and will determine s.aid damages from the testimony.; and in determining such damages they may take into consideration the amount of wages earned by the plaintiff, and the sum of money, less any amount that the plaintiff can or may earn by tho reasonable employment of his mental and physical energies, that would produce a similar income. The jury can only award compensatory damages, and are not authorized to allow anything as a punishment to defendant, or to allow anything except a reasonable compensation in dollars and cents, to be arrived at and made up from the testimony in the case and from no other source.”

It will be seen from this instruction that the jury were expressly told not to allow anything as a punishment to the defendant, and, further, not to allow anything but reasonable compensation in dollars and cents, to be arrived at and made up from the testimony in the case and from no other source. They were particularly and explicitly held to the strictest possible rule in favor of the defendant company on this subject. Their verdict must be accepted as responsive to this instruction. This court has no scale delicate enough to weigh physical and mental anguish. At best it is an extremely difficult task. The law has committed this delicate task to the unbiased judgment of the twelve plain, practical, every-day men who compose the jury, and it can nowhere be more safely rested than in the application of their good sense and honest judgment to the particular facts proven in each particular case. We cannot say on the facts in this case that their finding is not warranted. If the highest order of legal ability and the most consummate skill in the presentation of a case could avail to save a failing cause, this judgment would be reversed; but the very right of this case stands out in such clear relief, it is so manifest that substantial justice has been done and that no other result could reasonably be reached on another trial, that we do not feel warranted in disturbing the verdict.

Affirmed.