Natchez & Southern R. R. v. Crawford

55 So. 596, 99 Miss. 697

• Court: Mississippi Supreme Court
• Decided: March 15, 1911
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

The appellee, John E. Crawford, sued the appellant, Natchez & Southern Railroad Company, in the circuit court of Adams county, and recovered a judgment for two thousand dollars, from which appellant prosecutes this appeal.

The appellee was a brakéman in the employ of the appellant, and while engaged about his duties as such, in attempting to make a coupling, had his «foot crushed, which, had to be amputated. Appellee alleged in his declaration, and his proof tended to establish, these facts (quoting from the declaration): “That on said 'date defendant, disregarding its duty, negligently and carelessly permitted to be in the train on which plaintiff was engaged to perform services as such brakeman, a switch engine tender having an insecure, unsafe, and defective coupling appliance, having an insecure, unsafe, and defective drawhead, in this: That the said coupling appliance was not arranged with retaining springs on the side or collar, and the drawhead was so improperly fastened as to cause it to work to one side or the other of the cuff or casting during the running of the switch engine, and worked stiff and jerky, and had too large a radius of play; all of which facts were known, or by the use of ordinary care and prudence might have been known, to defendant, the said drawhead and cuff or casting having been in that condition for a long period of time; and that the plaintiff, while at the place on said switch engine tender which his duty as such brakeman required him to be (the footboard at the rear of said switch engine tender), on the afternoon of said July 23, 1910, in the Natchez yards of defendant, and while then and there in the careful performance of his duty in attempting to push said defective,' insecure, and unsafe drawhead into place, by standing on said footboard with his right leg, holding onto said switch engine tender with his two hands, and shoving said drawhead with his left foot,'the said drawhead being so stiff and hard to move, and having worked so far to one side of the cuff or casting, that it could not be moved by the strength of his hand, and then and there, because of the insecure, unsafe, and defective condition of said drawhead, and the defective condition of said cuff or casting, the said draw-head went too far to the other side of said cuff or casting, and in consequence the left foot of plaintiff was caught between the cuff or casting on the rear of the switch engine and the cuff or casting on the flat car, with' which a coupling was being made or attempted, then and there breaking, crushing, and mangling it to such an extent as to render its amputation necessary to save his life, which was done.”

The pleadings and instructions given and refused present the questions of the construction of chapter 135, p. 125, acts 1910, and of its constitutionality. The statute is as follows:

. “Section 1. Be it enacted by the legislature of the state of Mississippi, in all actions hereafter brought impersonal injuries, or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured .

“Sec. 2. All questions of negligence and contributory negligence shall be for the jury to determine.”

The giving of instructions Nos. 1 and 4, for the appellee, is assigned as error. They are:

(1) “That if they believe from the evidence in this case that the plaintiff, at the time of the injury complained of, was in the employ of the defendant as brakeman or switchman, and was engaged in making a coupling of the engine tender used by the defendant with one of the defendant’s ‘tail’ cars or ‘toe’ cars, and that then and there the plaintiff was injured because of the coupling, which was defective or unsafe or insecure, and that this condition of the coupling, if shown, was known to the defendant, or by the use of ordinary care and prudence ought to have been known to defendant, then the jury should find a verdict in favor of the plaintiff; and the fact that the plaintiff may have been guilty of contributory negligence in using his foot in and about this work is, under the law, no bar to his recovering a verdict against the defendant, but will call for the damages which the jury may believe from the evidence he has sustained, to be diminished in proportion to the amount of negligence attributed to him.”

(4) “That if they find for the plaintiff, they should award him damages sufficient to compensate him in full for the injury, if any, as shown by the evidence to have been sustained by him; also for the pain and suffering, if any, shown by the evidence to have been endured by him in consequence of the injury; also for the loss of time and loss of earning capacity, if any, shown by the evidence to have been sustained by him on account of the injury; and also to compensate the plaintiff in full for the permanent damage, if any, as shown by the eviclence to have been sustained by him in consequence of the injury: Provided, however, that if the jury believe from the evidence that the plaintiff in his conduct has been guilty of contributory negligence, then the sum total of the damages he would otherwise be entitled to shall be diminished in proportion of the amount of negligence attributable to him.”

And the refusal by the court of instructions Nos. 1 and 2, for the appellant, is assigned as error, which instructions are as follows:

(1) “The court instructs the jury that if they believe that the plaintiff’s own negligence caused or contributed to his injury, then they must find for - the defendant. ’ ’

(2) “The court instructs the jury that even though they may believe from the evidence that defendant, on the occasion in question, was guilty of negligence, still if they further believe that plaintiff was guilty of a greater degree of negligence, then they must find for the defendant.”

The court gave instructions Nos. 5, 6, 7, 8, and 9, for the appellant, which are here set out for the purpose of •more fully presenting the issues of law involved:

(5) “The court instructs the jury, for the defendant, that it is a perfect defense to this to show that the couplers, machinery, and appliances with which plaintiff’s duties required him to work were in good order, of standard patterns, and the engine properly handled, and the other employees of defendant were not negligent, and if the jury believe 'that the evidence in this case establishes tírese facts, then it is the sworn duty of the jury to find a verdict for the defendant. ”

(6) “The court instructs the jury, for the defendant, that, although they may believe that the injury to plaintiff was caused by the running of the locomotive of defendant, yet the defendant has established a perfect defense if it had shown that its coupling’s, machinery, and appliances were in good order and repair, and were properly handled and without negligence on the part of its other employees, and if the jury believe that this has been established, then it is their sworn duty to find a verdict for the defendant.”

(7) “The court instructs the jury that, if they believe from the evidence that the accident in question was caused solely by the negligence of the plaintiff, then they must find for the defendant.”

(8) “The court instructs the jury that if they believe from the evidence that plaintiff, on the occasion in question, was reckless and grossly negligent, then they must find for the defendant; and this is true even though they may further believe that the coupler upon the engine was defective, or broken, or not automatic.”

(9) “The court instructs the jury that if they believe from the evidence that the coupler in question was of a standard.make automatic coupler, and was not defective or out of repair, and that the agents of defendant were guilty of no negligence at the time of the accident, then they must find for filie defendant.”

It is argued on behalf of appellant that the statute in question confers judicial power on the jury, and for this reason is unconstitutional. It will be noted that section 2 of the act provides that'“all questions of negligence and contributory negligence shall be for the jury to determine.” If that were the proper construction of the statute (that it confers such power), it would undoubtedly be violative of the Constitution; for by article 0 of the Constitution of 1890 all judicial power in the state is vested in the supreme court and the circuit and chancery courts and the courts of the justices of the peace, and in such other inferior courts as the legislature from time to time may establish. And the common-law jury, guaranteed by section 31, is a jury with power alone to try issues of fact, and not of law. It is clearly not within the legislative competence,, under these provisions of the Constitution, to invest juries with judicial power-— that is, power to determine issues of law.

Does the statute, properly interpreted, confer judicial power on the juries? In answering this question, it is well to have in mind certain well-recognized rules for the determination of the constitutionality of statutes. The question whether a statute is violative of the Constitution is one of much delicacy, and which the court should approach with great caution and deliberation. Its constitutionality is prima facie presumed, because the legislature, in adopting it, is first required to determine its constitutionality. The .legislature must be deemed to have acted with integrity, and with a just desire., to keep within constitutional limitations. The legislature is a .co-ordinate branch of the government with the judiciary,- invested with high and responsible duties, and legislates under the solemnity of an oath, which they are not supposed to-disregard.

. All doubts. are.resolved in favor of the constitution-.ality of. the statute.." If there is reasonable doubt of its constitutionality, it must be upheld by the courts. If it is susceptible of two interpretations, one in favor of its constitutionality and the other against, it is the duty of the courts to uphold it. Cooley’s Constitutional Limitations (7th Ed.), pp. 252, 253, and 254.

A statute of Wisconsin (Laws 1907, c. 254, section 1816, subcl. 5) provides: “In all cases under this act, the question of negligence and contributory negligence "shall be for the jury.” (It will be noted section 2 of the statute under consideration is in substantially the same terms.) The supreme court of Wisconsin, in passing on the constitutionality of that statute, in Kiley v. Chicago, M. & St. P. Ry. Co., 138 Wis. 215, 119 N. W. 309, said:, “It is contended that'the legislature intended to deprive-the courts of their judicial functions, as conferred on them by section 2, art. 7, of the state Constitution, by the provisions of subdivision 5, and to confer such functions on juries, as they are constituted by the state Constitution. The powers conferred on courts and juries by these constitutional provisions were well defined in the established system of jurisprudence in this country at the time of their adoption. This court interpreted these constitutional provisions as conferring on court and jury those welhdefined powers as they existed, and had been repeatedly exercised by court and jury, under the common law. In Callahan v. Judd, 23 Wis. 343, in speaking of the significance of the phrase ‘judicial power as to matters of law and equity,’ employed in the Constitution, as applied to the courts, the court declares: ‘In actions at law they had the power of determining questions of law, and'were required to submit questions of fact to a jury. When the Constitution, therefore, vested in certain courts judicial power in matters of law, this would be' construed as vesting such power as the courts, under the English and American system of jurisprudence, had always exercised in that class of actions. It would not import that they were to decide questions of fact, because such was not the judicial power in such actions, And the Constitution does not attempt to define judicial power in these matters, but speaks of it as a thing existing and understood.’ See, also, Oatman v. Bond, 15 Wis. 21; Klein v. Valerius, 87 Wis. 54, 57 N. W. 1112, 22 L. R. A. 609; City of Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 8 L. R. A. 808, 20 Am. St. Rep. 123. Under the system of law as it then existed, it devolves on the court to determine the legal sufficiency of the evidence tending to prove a fact, and, when the court had judicially ascertained that the evidence adduced tended to establish the constituent facts of the matter at issue, it then devolved on the jury to determine whether, upon the evidence, the fact was satisfactorily proven. The powers of the court and jury in the administration of the law in these respects were distinct and well-defined at the time of'the adoption of our Constitution, and became vested in the court and jury by its provisions. They cannot be abrogated or modified by legislative caction -(to the extent of impairing, in any degree, the judicial power). Under the Constitution courts have become vested with the judicial power to determine the questions of the legal sufficiency of the evidence to establish the rights of the parties at issue, and to apply the law to the facts when found, and this power cannot be withdrawn from them and conferred on juries. Did the legislature intend by the provisions of subdivision 5 of this act to confer judicial power, vested in the court, on the jury? It declares: ‘In all cases under this act the question of the negligence and contributory negligence shall be for the jury. ’ In their 'general sense the words are but a declaration of the law as it exists, namely, that, when the court has found that there is legal evidence tending to show negligence or contributory negligence, it is for the jury to determine from the evidence adduced whether negligence or contributory negligence exists. This interpretation of the provision does not make . a change in the law, and cannot affect the rights of any person. ’ ’

The circuit court of appeals for the eighth circuit, in Mo. Pac. R. R. Co. v. Castle, 172 Fed. 841, 97 C. C. A. 124, having under consideration a statute of Nebraska providing, “All questions of negligence and contributory negligence shall be for the jury,” said: “In view of the history of trial by jury and the distribution of governmental powers by the Constitution of Nebraska, we cannot presume for a moment that the legislature had reference to any question except those of fact, when it used the language: ‘All questions of negligence and contributory negligence shall be for the jury.’ As thus interpreted the language quoted is simply declaratory of existing law. Kiley v. Chicago, M. & St. P. Ry. Co. (1909), 138 Wis. 215, 119 N. W. 309, 120 N. W. 756. It is only when in the opinion of the court there is no question of • negligence or contributory negligence as a matter of fact that cases are taken from the jury, under existing practice. ... If the legislature has the power to take away the defense that the injury sued for was committed by fellow servants, it certainly has the right to modify the rule that any negligence of a plaintiff directly contributing to his injury will defeat his recovery. Mo. Pac. Ry. Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Minneapolis & St. Louis Ry. Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176, 32 L. Ed. 109; Tullis v. Ry. Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192; Chicago, K. & W. R. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675; Pierce v. Van Dusen, 78 Fed. 693, 24 C. C. A. 280, 69 L. R. A. 705; Kiley v. Chicago, M. & St. P. Ry. Co., 138 Wis. 215, 119 N. W. 309, 120 N. W. 756.”

Section 2 of the statute, declaring that “questions of negligence and contributory negligence shall be for the jury to determine,” is merely declaratory of the common law. There can be no questions of negligence or contributory negligence for the jury, except issues of fact. The court has the power, which cannot be taken from it, to determine the legal sufficiency of the evidence as tending to establish negligence or contributory negligence. The language, “all questions,” means questions of fact — issues of fact — are for the jury. If the evidence never reaches the point of raising issues of fact to be determined, then there is no question for the jury. This section has reference to the issues of fact to be submitted to the jury, under the provisions of section 1 of the act. The only change made in the common law by this statute is that in the class of actions referred to in section 1 contributory negligence on the part of the plaintiff is no longer a bar to recovery, but may only be used against him by the defendant in mitigation of damages. If the testimony of the plaintiff falls short of establishing negligence on the part of the defendant, there is no question of negligence for the jury to determine, and the court may direct a verdict for the defendant. On the other hand, if there is sufficient evidence to go to the jury on the question of defendant’s negligence, and there is no testimony tending to establish contributory negligence oh the part of the plaintiff, there would be no question of contributory negligence for the jury, and the court should so instruct them peremptorily. The question whether, under this statute, if the plaintiff’s injury were brought about by his own willfulness, recklessness, or gross negligence, it would defeat a recovery by him, notwithstanding the negligence of the defendant is not presented for decision. It wj.ll be noticed above that such an instruction was given^on behalf of the appellants.

It is argued for appellant that the statute in question is violative of the following clause of section 193 of the Constitution: “Knowledge by any employee injured, of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, or engines voluntarily operated by them.” The’appellant is not in a position to raise this question. The appellee, at the time of his injury, was not a conductor or engineer “in charge of dangerous or unsafe cars, or engines voluntarily operated by him,” and is not seeking in that capacity to iny-qke the provisions of this statute against the appellant. The court will not listen to an objection made to the constitutionality of a statute by a party whose rights are not affected thereby, and who has no interest in establishing its invalidity. Cooley’s Const. Limitations (7th Ed.), p. 232; 8 Cyc. 787.

Construing this statute as we have above, there is no merit whatever in the contention that it violates either the due process or the equal protection clauses of the Constitution of the United States. It is clearly within the police power of the state. : The'statute makes a classification of all actions for personal injuries! This classification is based on reason and justice, and is not a discrimination in favor of defendants in other character of actions. It was held by this court in Jones v. A. & V. Ry Co., 72 Miss. 22, 16 South. 379, that section 3548, Ann. Code of 1892, prohibited running, walking, or kicking switches within the' limits of a municipality, and making railroad companies liable for damages sustained thereby, without regard to the contributory negligence of the person injured was not unconstitutional, but within the legitimate exercise.of .the!police power.

It follows, from these .views; that the'conrt below committed no error in the instructions given-for the appellee, nor in refusing those requested on 'the part of the appellant.

There is no merit in the .other -.errors assigned.

Affirmed.