DocketNumber： No. 25914.
Citation Numbers： 110 So. 510, 144 Miss. 804
Judges： ANDERSON, J., delivered the opinion of the court.
Filed Date： 12/6/1926
Status： Precedential
Modified Date： 1/12/2023
The court refused appellant's request for a directed verdict. That action of the court is assigned as error. Appellee's evidence tended to establish the following case:
Appellee was struck on a public crossing in the village of Taylor by one of appellant's south-bound freight trains. His skull was fractured, necessitating a surgical operation. The public crossing where appellee was struck by the train was about four hundred feet south of appellant's depot at Taylor. The crossing was much frequented by the traveling public. By order of the Railroad Commission, the speed limit statute for trains in municipalities was suspended as to that crossing. The injury occurred in the daytime. Several eyewitnesses testified. The father of appellee owned a home in which he lived with his family adjoining appellant's right of way on the east near the crossing where the injury occurred. At the time of the injury, there stood twelve to fourteen feet north of the crossing, on the east side of appellant's main line on a passing track, some freight cars. These freight cars were placed and left that near the public crossing in violation of a rule of appellant. The engineer in charge of the train which struck appellee testified that a rule of the company prohibited cars from being parked nearer than sixty feet of any public crossing. Appellee and his sister, who was about ten years of age at the time of the injury, left their home, on the east side of the railroad right of way, and were proceeding over the crossing where the injury occurred to the west side of the tracks and right of way. The little girl had crossed over when the appellee was *Page 815 struck by the train. She turned after crossing over and appeared to be waving appellee not to come across. This occurred as the train was approaching, at a speed estimated by the witnesses to be from eighteen to thirty-five miles per hour. There was nothing to prevent the engineer and fireman on the train from seeing the little girl thus beckoning to appellee, if they were on the lookout. When the train reached the crossing, appellee was nearly across — one or two more steps west would have taken him beyond the sweep of the train. Neither the engineer nor the fireman saw appellee until it was too late to do anything to prevent the injury. The freight cars parked twelve to fourteen feet above the crossing on the east side of appellant's main line obscured appellee from their view until he emerged from behind the obstruction and entered the crossing over appellant's main line. The engineer running the train never saw appellee at all. He was in his seat on the west side of the cab. His view was obscured by the freight cars referred to, until the train was so close to the crossing that his view was obscured by his engine. The fireman saw appellee only a moment before he was struck. He so testified, and the physical facts corroborated his testimony in that respect. But appellee's testimony tended to show that, if both the engineer and fireman had been on the lookout, they would have seen appellee's little sister on the west side of the crossing beckoning to appellee not to cross over. Appellee's testimony tended to establish that the statutory signals were not given for the crossing, while appellant's tended to establish the converse. The amended declaration is in two counts. The first count charged that the injury was caused by appellant's negligence in running its train over the crossing without giving any warning of its approach. The second count charged that the injury was caused by the running of appellant's train at a high and excessive rate of speed, over a much frequented public crossing, without any warning. *Page 816
We think it clear that the question of liability was one for the jury. It was the duty of appellant to regulate the speed of its train over the crossing where the injury occurred with reference to the conditions existing at the time. Those conditions were that the crossing was a public crossing in a municipality and much frequented by the traveling public. Appellant was chargeable with notice that on its passing track northeast of the crossing there were parked freight cars in violation of one of its rules made for the safety of the traveling public; that the freight cars were so situated that a person traveling from east to west would be obscured from the view of the engineer and fireman on a south-bound train until the train was so close that it would be impossible to stop it and avoid injuring such a person entering upon the crossing. Whether the train at the time of the injury, under the conditions and circumstances existing, was running over the crossing at an excessive and dangerous rate of speed to the traveling public we think was a question for the jury and not for the court; and, furthermore, the jury would have been justified in finding that the engineer and fireman were not on the lookout as they approached the crossing, although they testified that they were, for there was testimony in the case which tended to show that, if they had been on the lookout, they could and would have seen appellee's little sister waving to him not to cross over.
By the fourth instruction for appellee, the court told the jury that, if they found for the plaintiff, in assessing damages, they should take into consideration, among other things, "any mental and physical pain and suffering which the testimony may show he has endured or will endure, if any, as the proximate result of the negligence of defendant." Appellant's criticism of this instruction is the language "has endured" (italics ours). Appellant's position is that a child two or three years of age could not endure mental anguish, and therefore the instruction authorizing as an element of damages mental *Page 817
anguish already endured was error and misleading to the jury, and probably influenced their verdict. Appellant bases its argument on the definition of mental anguish given by the Texas court in Railroad Company v. Miller,
A child, though incapable of reasoning, will cry out as the result of physical pain. Mental anguish exists whether the child can recognize it and reason about it or not. The Texas court, as we understand it, did not hold that there could be no mental anguish growing out of a physical injury for which recovery could be had except such as resulted from the injured person's contemplating and brooding over his crippled condition. It simply held that, in a proper case, that would be one of the elements of mental anguish. We think the instruction criticized by appellant embodied the correct principles of law.
The court gave appellee an instruction which told the jury that it was the duty of appellant to maintain a reasonable lookout when approaching the crossing. Appellant's contention is that the instruction had no application *Page 818 to the undisputed facts of the case, and was therefore calculated to mislead the jury. Both the engineer and fireman testified that they were on the lookout as they approached the crossing. Appellant argues that their testimony was undisputed and should have been accepted by the jury as true; that the instruction criticized, therefore, submitted that question to the jury when it was not a question in the case, and to do so was harmful to appellant. The engineer and fireman testified that they did not see appellee's little sister on the west side of the railroad tracks apparently waving to appellee not to attempt to cross. Appellee's testimony tended to show that, if the engineer and fireman had been on the lookout, they could and would have seen her. We think it was an issue for the jury as to whether the engineer and fireman were on the lookout as they approached the crossing.
Appellant assigns as error the action of the court in refusing to set aside the verdict on its motion for a new trial, on the ground that the verdict was so excessive as to evince passion and prejudice on the part of the jury. It is always difficult for a court to determine whether the verdict of a jury was influenced by passion or prejudice. Appellee was two years and eight months of age at the time of his injury. The trial took place a little less than two years after the injury. Appellee's skull was fractured; he was taken to a hospital in Oxford and remained there about twenty days. For several days after being taken to the hospital he was unconscious. His skull was fractured on the left side near the top of his head, and a surgical operation was performed on his head in which a piece of the skull about two inches long, and the width of two fingers, was taken out. A small particle of his brains came out. Appellee's mother and father testified that his recovery seemed complete, and that he was more robust and apparently in better health than he was before his injury. The only evidence of physical suffering testified to by them was that he was restless at night, *Page 819 and sometimes would put his hand up to his head and say that his head hurt him. Dr. Bramlett, who operated on appellee, testified that there would always be a soft place on appellee's head where a part of the skull had been removed; that in his judgment the soft place would never grow up; in other words, that the skull would never grow out and cover the brain as it did before, that the only covering the brain had at the place where the skull was removed was the skin and some kind of growth under the skin over the brain. Dr. Bramlett testified that a serious lick on this soft place on appellee's head might either cause death or epilepsy; that it might make him subject to sunstroke, and might be dangerous for him to engage in violent physical effort. He testified that appellee appeared to be on good physical condition — in fact, that there had been a complete recovery from his injuries.
It will be seen therefore, from Dr. Bramlett's testimony, that he was uncertain as to appellee's future handicap growing out of the injury; that it was problematical. An injury for which recovery may be had must be proven with reasonable certainty. There was no evidence of any mental deficiency resulting from the injury. Fifteen thousand dollars at six per cent. interest would yield seventy-five dollars a month, aggregating nine hundred dollars a year. A verdict in that sum, we think, would be nearer in line with the verdicts which this court has permitted to stand where the injuries were of like degree and permanency. We think the verdict is so large that it shows that the jury were unduly influenced by sympathy for the appellee, and was therefore the result of passion or prejudice. If the appellee will enter a remittitur of the judgment down to fifteen thousand dollars within ten days after the opinion goes down in this case, the judgment will be affirmed for that amount; otherwise the cause will be reversed and remanded for a new trial on the question of damages alone.
Affirmed with remittitur; otherwise reversed and remanded. *Page 820