Vicksburg & Meridian Railroad v. Phillips

64 Miss. 693

• Court: Mississippi Supreme Court
• Decided: April 15, 1887
• Status: Published

Opinion

CAMPBELL, J.,

delivered the opinion of the court.

The right of the administratrix to sue and recover whatever damages her intestate, might recover, if living, is indisputable. Code, §§'2078, 2079. If Jo. Brantley had sued, as he might, and died while the action was pending, it would have survived to his administrator by virtue of § 1513 of the code. Section 2078 authorizes the prosecution by the personal representative of any personal action whatever which the decedent might have commenced and prosecuted, and § 2079 specifically authorizes an action for any trespass done to the person or property, real or personal, of the decedent. The last named may have been unnecessary, but it cannot be held to limit the comprehensive language of § 2078.< Certainly it authorizes this action, even if it is a limitation of the preceding section. It probably sprung from the determination to secure the survival of this kind of action.

It is found as art. 46, p. 485, of Code of 1857, while the original of § 2078, supra, is art. 119, p. 455, Code of 1857. It is manifest that the death of Jo. Brantley did not destroy the right of action, for, had he commenced an action, it would have survived by § 1513, as stated above, and § 2079 plainly provides for the institution of such an action by the personal representative. Section 1510 provides for an action to recover for the death of a person, and it is entirely distinct from and independent of an action by the personal representative. They may co-exist, but have no connection.

The instructions asked by the defendant were all properly refused. It was for the jury to decide whether, under the circumstances, the defendant was liable in damages for having used improper means of clearing its train of boys improperly on it, and the court rightly refused to give any of the instructions asked by the defendant.

We find no fault with the instructions for the plaintiff. The first is in accord with § 1059 of the code. The injury sued for was inflicted by the cars of the defendant when running, and the fact that a precedent wrong produced the conditions which resulted in the injury does not prevent the application of the statute. If Jo. Brantley had been on the ground, and been injured by the running train, it would not be denied that the statute applied. Whenever a person or thing is struck and injured by locomotive or cars, the statute applies. That is its language, and we cannot limit it so as not to include all cases embraced by its terms.

If proof of injury inflicted by the running of locomotive or cars shows the circumstances and furnishes exculpation from the presumption of want of care and skill created by the statute, that is sufficient. The statute does not require the company to furnish exculpatory evidence when the facts shown acquit of blame. It means that injury inflicted unexplained calls for exculpation, for it imputes blame in every case of injury inflicted by the running of locomotive or cars until the facts shown relieve from the imputation. When the facts appear, no matter how, it is a question determinable from them whether or not there was want of reasonable skill and care.

The statute .was enacted to meet cases where the manner of the injury inflicted is not known to others than the employees of the railroad company, but it is equally applicable where a cloud of witnesses see the injury. It is not needed there, it is true, but it is not error to invoke it, for the law affects the railroad company with liability, prima fade, in every case of injury inflicted by the running of its locomotives or cars. If the evidence showing the injury inflicted rebuts the presumption, well, but if it does not, the presumption created by law from the fact of the injury in this mode is to stand and control.

It is proper for the court, at the instance of the defendant, to instruct the jury that when the circumstances accompanying the infliction of injury by the running of locomotive or cars are in evidence before them, it is to decide the question of skill and care in reference to the injury from those circumstances. Presumption must yield to facts where they are all known. But it cannot be said to be erroneous to instruct the jury that the law presumes wrong and imputes blame from the fact of injury inflicted by the running of locomotive or cars, for that is precisely what § 1059 does.

Affirmed.