Gulf & S. I. R. v. Boone

82 So. 335, 120 Miss. 632

• Court: Mississippi Supreme Court
• Decided: March 15, 1919
• Docket: No. 20768
• Status: Published

Opinion

SteveNS, J.,

delivered the opinion of the court.

This is an action for damages instituted by appellees as brothers and sisters of Douglas Boone, deceased, for' the alleged wrongful and negligent killing of the deceased by appellant railway company. Douglas Boone at the time of the unfortunate tragedy was a soldier in the United States army, and stationed as one of the guards at Brooklyn bridge on the line of the defendant company. On April 8, 1917, a detachment of soldiers was detailed to guard the railway bridge across Black creek. This detachment consisted of a sergeant, two corporals, and eight privates. Deceased was a private, went on duty at midnight on the morning of April 11th, and at about 2:30 a. m. was struck and fatally injured by the head locomotive of a long freight train going from Gulfport to Jackson. There, were two guards on duty at the time, the other soldiers being asleep in their tents. Deceased was stationed at a post at -the north end of the bridge some three hundred feet south of a public road which crossed at the unincorporated village of Brooklyn, and some three hundred and thirty feet south of the depot at Brooklyn. • The track was straight a great distance, and the bridge with its approaches was some one thousand eight hundred feet long. There was no agent at the depot at 2:30 a. m., and no occasion for the freight train to stop at Brooklyn at this time. The train was what is known‘as a “double-header,” being pulled by two engines,, each of which was in charge of an engineer and fireman, and was running from twenty-five to thirty miles per hour. The engineer saw that he had struck a man and therefore stopped his train, and was the first to reach the injured man and to give warning to the other soldiers. Boone was thereupon placed-on board the train and carried to a hospital in Hattiesburg, where he died about 12 o’clock of the same day. He was unconscious, and ac- . cordingly unable to speak or make any statement or outcry of any kind. Deceased was struck on top of the head, the wound starting “right at the edge of his hair and running straight back on top of his head about, four inches long.”

For the plaintiffs there was evidence tending to show that this heavy freight train pulled by two engines was being run at a high rate of speed, with knowledge that soldiers were guarding at this long bridge, and that the engineer gave no alarm until he was practically on the deceased. Plaintiffs rely largely upon the prima-facie statute (Hemingway’s Code, section 1645 [Code 1906, section 1985])., there being no dispute of the fact that the injury was inflicted by the locomotive1' and cars of the defendant company. For the defendant the chief engineer, Dan Meadows', testified', and if his testimony be true, there is no liability in the case. He testified that he saw an object on the track some one thousand five hundred or one thousand sis hundred feet away, an'd, upon seeing this object, began to blow his whistle, apply his brakes, and slow down his train. But upon approaching closer'the object, which theri proved to be a man, got up, got off the track, and walked some six or eight feet from the track, and immediately returned to the track and stooped over and attempted to pick up and pull off the track his coat and gun, and was struck by a bolt on the .engine; that he had his train under control, and could have stopped it before reaching the object which he saw on the track if the deceased had not got up and jumped off; that when the deceased did jump off witness released the brakes and commenced to put the steam on again, and could not anticipate' the deceased running back to the track and stooping over as he did. This was the only witness introduced by the defendant. Engineer Evans whs in charge of the second engine and both engineers made reports of the accident. In contradiction of the positive testimony of Meadows, the plaintiff introduced the written reports filed by both engineers, and also witnesses whose testimony tended to prove that the injury could not have occurred in the ■manner detailed by the witness Meadows. The written report of the witness is somewhat in conflict in its details -with the statements made* by Evans. Evans states in his written report that Meadows was some one hundred and fifty feet away from Boone when the whistle was blown, and that nothing was done to stop the- train, as it was impossible to stop. Certain witnesses for the plaintiff testify that Boone was stationed on an embankment, and that at the point of the injury there was an embankment down which the deceased would have to descend some ten or twelve feet if he had left the track and walked away some seven or eight feet, as testified to by Meadows; that it would have been impossible to walk away from the track and return and stoop down and be injured on the head in the manner detailed. . In these and other conflicts not necessary to be de-táiled the trial court put the case to the jury, which returned a verdict for the plaintiff in the sum of thirty thousand dollars. . "

Appellant contends that the proven..facts and’ circumstances completely exonerate the defendant ‘from all blame or negligence, and that the peremptory instruction should have been given appellant. Instruction No. 1 for the plaintiff is also assigned for error, and the verdict is claimed to be excessive. Instruction No. 1 reads:

' ‘ ‘ The court instructs the jury, at the request of plaintiffs, that if Douglas Boone was struck and killed by the engine or cars of the defendant while running on its tracks, then it is prima-facie negligence on the part of the defendant, and it devolves upon said defendant railroad company to exonerate itself from liability, 'and in order to do this the evidence must show, not only how the injury occurred, hut it must also appear from the evidence that the defendant company in running and operating of said train were free from negligence; and", unless the jury are satisfied from the evidence that the defendant company and its servants were free from negligence in the operation of said train or cars that struck and killed said Boone, they will find for the. plaintiffs.”

We will first dispose of the contention that the defendant was entitled to a peremptory instruction. The case was submitted to the jury on the theory .that the testimony of ;the sole witness for the defendant was in conflict with the testimony offered on behalf of the plaintiff, and the verdict of the jury is justified under its view that the defendant had not fully and. fairly shown how the injury was inflicted, and consequently our prima-facie statute applies. The conflicts in the testimony relate to the question as to whether the train was running on schedule time, whether any alarm was given, on the question as to exactly what effort the engineer made to gvert the accident, and on the reasonableness of the engineer’s testimony as to what the deceased did and how he received the fatal .blow from the rapidly moving locomotive. It appears that a demonstration was made before the jury as to whether or not it was possible for Mr. Boone to have been struck either by a bolt on the sill of the engine or by a step on the front end of the engine; the plaintiff’s testimony tending to show that it was impossible for the deceased to have been struck in the manner detailed by witness Meadows. We think there was sufficient conflict to put the ease to the. jury. There was a conductor, two firemen, two brakemen, and EÍvans, the other engineer, neither of whom was placed upon the witness stand. It was for the jury to say whether or not the defendant had overcome the prima-facie presumption of negligence. The jury was justified in concluding that no reasonable explanation has yet been given how the injury was inflicted, and in assuming thgt mystery still envelopes and beclouds the whole unfortunate ^tragedy. The witness Morse; the other guard on duty at the south- end of the bridge, was positive ■ in his testimony that the engineer did not blow any whistle at that point, and that no effort made to give warning of the approaching train., It is contended by appellant that the status of Mr. Boone was that of a trespasser, or at least that the defendant company owed him no duty. The fact that he was not an employee or a passenger is emphasized. We doubt not that Mr. Boone was subject to criticism for placing himself in a position of peril. But this question could only go to the amount of recovery. It will profit little to declare the exact status of the deceased. Admittedly Mr. Boone was a soldier on active duty as a guard, and in the performance of his duties had a lawful right to be on the right of way, .taking care of and guarding one of the means of transportation necessary for the government service, and in guarding a bridge of much importance to the defendant company in its business as a common carrier. We must assume that these guards were placed on duty by and with‘ the full consent of the railway company, and Mr. Boone was certainly where he had a right' to be so long as he did not voluntarily or negligently place himself in front of a moving train. Even though Boone was guilty of .contributory negligence, plaintiff’s cause of action was not thereby barred, and the question of contributory negligence was presented to the jury under proper instruction.

We do not approve instruction No. 1 as languaged, but under the facts of this particular case we do' not regard this instruction as reversible error. It is subject to criticism, in that it does not apparently confine the defendant’s negligence to such negligence as contributed in whole or in part to the injury complained of. It is further perhaps subject to criticism in using the word “satisfied” in .the statement “unless the jury are satisfied from the evidence that the defendant company and its servants were free from negligence in the operation of said train or cars. ” It is further contended that under the Daniells Case, 108 Miss. 358, 66 So. 730, “when, tlie facts and circumstances have been ascertained, they must be able to say therefrom the defendant was guilty of negligence,” and that here the presumption should yield to the facts. A sufficient reply to this argument is the showing that the defendant company did not put in evidence all of the true facts and circumstances, and consequently did not fully meet the burden imposed by our statute. This statute, though harsh and exacting, is not met by conjecture or even by testimony which has been sufficiently discredited.

The last and the most important point presented by this appeal is the complaint that-the verdict of the jury is excessive. The testimony shows that the deceased was twenty-one years old, that he joined the army before the age of marjority, and served several months on the Mexican border, and at the time of his death was drawing the small salary of a private. He was contributing approximately twenty dollars a month to his fourteen year old sister, one of the plaintiff, and his life expectancy was forty-one and fifty-three hundredths years. He'was in an unconscious condition, and never regained consciousness, and there can be no recovery for pain and suffering. Both father and mother are dead. There are two living brothers and one sister of the whole blood, but there are also four half-sisters and one half-brother. After the death of the mother the young sister of the whole blood went to live with her half-sister, and was living with this half-sister when Douglass Boone, the deceased, voluntered for the army, and she was living with one of her brothers at the time Douglas Boone was killed. There is no showing as to whether Douglas Boone .intended to make military life his vocation, or whether he comtemplated being discharged upon the conclusion of peace, and no showing as to what business, if any,, he would engage in upon being discharged from the army. His contributions to his sister amounted approximately to two hundred and forty dollars a year and the present worth of this contribution during the entire period of his life expectancy would be approximately three thousand six hundred forty-three dollars and twenty cents.

We think the plaintiff had a right to recover for loss of companionship, but the amount of this recovery should be influenced by the facts as outlined. St. Louis, etc., R. R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 39 L. R A. (N. S. 978, Ann Cas. 1914B, 597. Under the evidence it was not at all certain when Douglas Boone, had he lived, would have returned to his brothers and sisters, and whether the young sister, coplaintiff herein, would live with him.

Under the authority of Mississippi Oil Co. v. Smith, 95 Miss. 528 48 So. 735, and Cumberland Tel. & Tel. Co. v. Anderson, 89 Miss. 732, 41 So. 263, plaintiffs had a right to recover the present value of the deceased’s own life expectancy. ' But what was this expectancy worth? Recovery must be based upon the evidence. If we estimate this value on the basis of salary received by a private in the army, the amount could not well exceed twelve thousand dollars or fourteen thousand dollars. Viewed as a matter of sentiment the life of one of the stalwart sons of America cannot be valued in terms of dollars and cents. The statute contemplates such damages as can fairly be shown by human testimony. Recovery cannot be enlarged on account of the horror 'and terrible shock of a tragedy of this kind, where deceased was knocked unconscious and died soon thereafter without visible sighs of pain and suffering, and where there is no element of punitive damages. We cannot leave the. evidence and speculate as to what trade or profession young Boone would have engaged in when discharged from the army, or as to what he would earn by any future employment, of such character. If permitted to conjecture, we might as well assume that he would marry and establish a home of his own. We are bound to conclude that tbe verdict is excessive. We react this conclusion after carefully taking into consideration legal damages of every kind and character contemplated by the statute. If we give the plaintiffs the benefit of all doubt in the case, we are yet satisfied that recovery should be limited to an amount not exceeding twenty thousand dollars. If, therefore, the appellees will enter a remittitur in the sum of ten thousand dollars, a judgment for , twenty thousand dollars and all costs in the trial court will be affirmed, otherwise the' ■judgment appealed from will be reversed, and the cause remanded.

Affirmed, with remittitur.