Yazoo & Mississippi Valley Railroad v. Scott

1. Rahroads. Master and servant. Code 1906, § 4056. Improperly loaded cars. Contributory negligence. Under Code 1906, § 4056, providing that knowledge by a railroad employe, among other things, of the improper loading of a car shall not be a defense for an injury resulting to him therefrom, plaintiff’s knowledge of the improper loading of the car, in the absence of all other evidence on the subject, does not warrant the submission to the jury of the question of his contributory negligence. 2. Damages. Personal injuries. Excessive verdict. Where by the actionable negligence of the defendant, plaintiff, a young man, had his leg broken in three places, making him a. cripple for life, and suffered other grave injuries, permanent in character or remediable only by a serious surgical operation, a verdict for fourteen thousand dollars is not so excessive as to require the court’s interference.

From the circuit court of Warren county. Hon. John N. Bush, Judge. Scott, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff’s favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court. Statutes of the character of Code 1906, § 4056, do not in themselves impose and fix a positive liability against which no defense to a demand based on that section could be interposed. Statutes similiar to this, and provisions imposing special statutory duties, even more positive and comprehensive, have been frequently construed by this honorable court and other courts of the land, and it has been held uniformly in this state that such statutes do not, however broad and emphatic the terms of the statute may be, cut off defenses of contributory negligence, lack of due care and caution, the fault or carelessness of the injured party, etc. We call the special attention of the court on this proposition to the case of Buchner v. Railroad Go., 72 Miss. 878, 18 South. 449. In the case of Vichsburg, etc., R. Go. v. McGowan, 62 Miss. 682, this proposition received a very careful examination, explanation and endorsement by this honorable court, and there it is expressly provided that “a violation of the statute referred to, does not impose upon a railroad company an absolute liability for an individual injury inflicted at the time thereof, but is merely negligence entitling the injured party to recover damages, provided he has not been guilty of contributory negligence.” In this case last cited, it is also held that an instruction by the trial court to the jury in the very words of the statute and without qualification, restriction or explanation is error where the language of the statute, if literally construed, would not express the thought and spirit of the law, but would tend to mislead the jury by practically instructing them that the liability was absolute and that the rule should be enforced without qualification and without reference to contributory negligence or other defenses. The McGowan case, and this particular portion of it, has been referred to and reiterated in the Stroud case, 64 Miss. 784, 2 South. 171; the Summers case> 68 Miss. 573, 10 South. 63; the Collins case, 77 Miss. 859, 27 South. 837; the Stevens case, 81 Miss. 207, 32 South. 311; the Humphreys case, 83 Miss. 734, 36 South. 154; and the Bridges case, 86 Miss. 589,' 38 South. 788. We think, on the whole evidence, and in the light of the testimony, the defendant had a right to argue to the jury that the rule announced in section 4056 did not relieve the plaintiff of the duty of ordinary care and did not relieve him of liability for carelessness and voluntary and reckless exposure to known danger. This cause grows out of a clear violation of a plain inhibition placed in section 4056, of our Code, demanded by the wisdom and experience of employes in railroad life, because of the doctrine of the .“assumption of risk,” waged by the company against its servants, after the injury caused by the improper loading of cars. “Knowledge by an employe injured of the defective or unsafe character or condition of any machines, ways or appliances or the improper loading of cars shall be no defense to an action for an injury caused thereby.” It is no longer “contributory negligence,” on the part of an employe of the railroad company, in the performance of a duty to his master, voluntarily to incur a danger inherent in the management or operation of “improperly loaded” cars, furnished by his master, with which to perform his duty as switch-man. and be no longer assumes tbe risk in sucb cases. Section 4056, of C'ode bas shifted tbe liability from tbe shoulders of tbe employe, where it rested under tbe common law, to tbe railroad company, where in justice, and as a matter of public policy, it belongs. An employe may continue in tbe performance of bis duty to couple an “improperly loaded” car, even though it is unmistakably dangerous to do so. All that tbe law requires of tbe employe is, that be operates tbe “improperly loaded” car in sucb reasonable and careful manner as is consistent with tbe proper performance of bis duties. Tbe care required, will of course vary with tbe apparent danger. “He must use a degree of care applicable to tbe situation,” says .Judge Campbell in tbe Buckner case, 73 Miss. 873. Section 4056, of tbe Code, tbe words “improper loading” of tbe cars are not qualified, and tbe court cannot set a limit to tbe degree of danger, inherent in tbe use and operation of “improperly loaded” cars, which an employe máy voluntarily in■cur, without interpolating something into tbe section. Tbe correctness of an instruction must be determined in connection with tbe facts of tbe case, as presented by tbe evidence, ■and it should be held correct if it would produce the proper’ •results upon tbe facts of tbe case, whether technically or abstractly accurate or not. Thompson v. Thompson, 9 Ind. 223; Keyser v. Kansas City B. Co., 56 Iowa, 440; Ketry v. Thumma 9 Ind. App. 498 — 500; Bosenthal-Meyer <& Co. v. Middlebroolc, 63 Tes. 333; State v. Alleck, 60 N. O. 450; TJpson v. Baiford, :29 Ala. 188; Diet v. Cant, 22 Ala. 249; Belote v: State, 36 Miss. 96; Maurer-v. Midwy, 25 Neb. 575; Lehman v. Warren, •53 Ala. 535 ; S. & N. Ala. B. Co. v. Wood, 7.1 Ala. 215 ; Fulton, ■etc., Co. v. Goodman, 32 Ala. 108; Miller v. Jones, 29 Ala. 174; Waters v. Spencer, 22 Ala. 460; Bride v. Thompson, 8 Ala. ■650; Skates v. State, 64 Miss. 644, and divers others. There was no evidence of contributory negligence other than -tbe mere fact that plaintiff may have known that tbe car was improperly loaded, and tbe statute says this shall be no defense). There was therefore no question of fact for the jury on the subject of contributory negligence. The legal yard stick by which this court will consider the suggestion to reduce the finding of the jury, because it is excessive is this: — It must evince passion, prejudice, partiality or corruption. Mississippi, etc., B. Go. v. Gorinth, 51 Miss. 79.