Illinois Cent. R. v. Nixon

68 So. 466, 109 Miss. 308

• Court: Mississippi Supreme Court
• Decided: March 15, 1915
• Status: Published

Opinion

Stevens, J.,

delivered the opinion of the court.

This case was before this court once before on an appeal by appellees from a judgment predicated on a peremptory instruction in favor of the railroad company. The material facts are stated fully in the former opinion of this court as reported in 103 Miss. 405, 60 So. 566. There is no contention that the proven facts and circumstances reflected by the present record are materially different from those shown and discussed in the first appeal. Appellant assigns as error the granting of each of the instructions for plaintiff and the refusal of certain instructions asked by the defendant, particularly the refusal of instruction No. 11. This instruction is as follows:

i<rThe court charges the jury for the defendant that, if they believe from the evidence that both Sam Nixon and the defendant were guilty of negligence which contributed to his death, in fixing' the amount of their verdict they shall allow only such proportion of full compensation as compensatory damages as the negligence of defendant bears to the total negligence of the two, that is, that if they are guilty of equal negligence, half compensation shall be allowed, if 'Ifixon was guilty of twice as much negligence as defendant they shall allow only one-third of full compensation, these illustrations being given to illustrate the rulé of comparative negligence. ’ ’

Attorneys for appellees contend that the question of contributory negligence was properly and sufficiently submitted to the jury by the following instruction asked for and granted appellant, to wit:

21496, Miss. Case. 132, G-al 3, 6-2-16. J. Davenport.

“The court charges the jury for the defendant that, if you believe from the evidence in this case that the defendant railroad company was negligent in the running of some locomotive or train of cars which struck and killed Sam Nixon, and that such negligence was the proximate cause of the injury, and that you further believe that Sam Nixon was also guilty of negligence which contributed to his injury and death, in fixing the amount of damages, if any, which you will award the plaintiff, you must diminish the same just in proportion as the negligence of Sam -Nixon contributed to the in jury.”

The only question of importance is whether the trial court erred in refusing instruction No. 11. Without deciding whether instruction No. 11, the forepart of which seems to be approved by the supreme court of the United States as applied to the comparative negligence provision of the Federal Employers’ Liability Act, is good, we think the law of comparative negligence was sufficiently given in charge to the jury in this case by the instruction shown above as given. We are of the opinion that an instruction given in the language of our statute is all that is required of the trial judge. The statute is simple, and needs not to be enlarged upon by any language of the court illustrating its application to the particular facts of the case on trial. It was not error, therefore, to refuse in this instance instruction No. 11. The material issues of this case were settled adversely to appellant in the former appeal.

The case must therefore be affirmed.

Affirmed.