Yazoo & M. V. R. Co. v. Mullins , 125 Miss. 242 ( 1921 )

Holden, J.,

delivered the opinion of the court.

This is an appeal from the circuit court of Adams county, wherein the plaintiff, Mrs. Clara J. Mullins, adminis-tratrix of the estate of James Davis Mullins, deceased, recovered a judgment of ten thousand dollars against the appellant 'railroad company on account of fatal injuries sustained by said James Davis Mullins on October 14, 1915, while employed as a flagman by said railroad company and while boarding or mounting a train at Harris-ton, Miss.

This is the second appeal in the cause. The opinion of this court on the first appeal is reported in Y. & M. V. R. R. Co. v. Mullins, 115 Miss. 343, 76 So. 147. From a judgment of affirmance on the first appeal the case was taken to the supreme court of the United States on a writ of error, and by it reversed on the grounds that our prima facie negligence statute (section 1985, Code of 1906; section 1645. Hemingway’s Code) does not apply in cases under the Federal Employers’ Liability Act (U. S. Comp. St., sections 8657-8665), and that an instruction to the jury on the duty of the master to furnish a safe place to work was erroneously granted. See Y. & M. V. R. R. Co. v. Mullins, 249 U. S. 531, 39 Sup. Ct. 368, 63 L. Ed. 754. Upon the mandate of the United States supreme court this court set aside its former judgment and reversed and remanded the case for a new trial in the lower court in accordance with the opinion of the federal supreme court. See Y. & M. V. R. R. Co. v. Mullins, 120 Miss. 662, 83 So. 1.

When the case was again tried in the lower court, the plaintiff introduced some new proof with reference to the proximate cause of the injury, in addition to the evidence introduced at the former trial. There was a verdict in favor of the plaintiff for ten thousand dollars, from which this appeal is prosecuted.

Appellant assigns several grounds for reversal, but we find no merit for discussion in any of them, except two; namely: It is contended that the evidence was insufficient to support the verdict of the jury, in that it failed to show that the negligence of the railroad company was the proximate cause of the injury; and, second, that the court erred in granting plaintiff the following instruction :

“The court instructs the jury for the plaintiff that, even though the jury may believe that the plaintiff was guilty of negligence which proximately contributed to the injuries sustained by him, this fact would not prevent the plaintiff from recovering in this case, providing the jury further believes from a perponderance of the evidence in this case that the defendant was guilty of such negligence as proximately contributed to and was one of the proximate causes of the injuries sustained by Mullins, but that, should the jury believe that Mullins and the defendant were both guilty of such negligence as proximately contributed to and caused the injuries sustained by Mullins, the jury should, in the event, not award to the plaintiff the full amount of damages otherwise recoverable in this suit, but should award her an amount which bears the same proportion to the damages which would have' been recoverable in this suit had not Mullins been guilty of negligence that the negligence of Mullins bears to the combined negligence of Mullins and the defendant.”

After an extended and careful consideration of the first point presented by appellant, we have reached the conclusion, by a divided court, that the evidence in the case was sufficient to sustain the verdict of the jury. Without discussing the testimony of the case in detail, we deem it ample to say that from all the facts and circumstances in proof, and by reasonable inferences drawn therefrom, the jury was justified in finding that the injury resulted proximately from the negligence of the railroad company. Therefore the judgment as to liability of the appellant is affirmed, Justices W. H. Cook, Ethridge, and Holden being of this opinion, and Justices Smith, Sam C. Cook, and Sykes being of the opinion that the appellant is not liable, as to proximate cause, under the. evidence in the case. On all other questions presented by the appeal the court is unanimous.

The granting of the instruction to the plaintiff on the question of diminishment of damages on account of contributory negligence of the deceased was obvious error, for which, we must reverse and remand the case' for the assessment of damages only. This procedure is permissible under the case of Norfolk Southern R. R. Co. v. Ferebee, 238 U. S. 269, 35 Sup. Ct. 781, 59 L. Ed. 1303.

Affirmed as to liability, and reversed as to damages only.

Affirmed.

Reversed.

Smith, C. J., and Sam C. Cook and Sykes, JJ., concur.