Royston v. Illinois Central R. R.

Campbell, J., delivered the opinion of the court. If the testimony for the defendant is true, the verdict is manifestly right, and must stand, unless there was some error of law which may have produced it. It is plain that the jury believed the testimony for the defendant, and this settles the question in favor of its credibility for the consideration of the case by this court, especially as we think, after a careful examination of all the evidence, the jury was fully justified in the view taken. The errors of law insisted on in the court below, as shown by the motion for a new trial, are the action of the court in recalling the jury to hear the testimony of the witness, Milan, after the argument had been concluded; and upon the instructions of both sides. There was a dispute as to what part of an affidavit for a continuance on account of the absence of one Milan, a witness for [384] defendant, should be considered by the jury, and counsel for the plaintiff, just as the jury retired, asked the court to note an exception to its ruling as to that. “ Whereupon the court in order to remove all objection and meet the ends of justice, stated that he would re-open the whole case and allow each side to introduce testimony and re-argue the case if they desired, and present further instructions, and would exclude all of the' affidavit as to Milan’s testimony.....The jury was thereupon brought back into the box, and the witness, Ben Milan (whose arrival in court just as the argument of the case was closed had been made known to the court), was sworn as a witness, and testified.” This is a quotation from the bill of exceptions. There was no error in this. The course of the court is worthy of all commendation, since the true object of every trial in court is to ascertain the truth, and no right of the plaintiff was violated in the course pursued. As to such matters, large discretion must be permitted to the trial court. The refusal of the second and third instructions asked by the plaintiff was made the ground of the motion for a new trial. These instructions are to the effect that as the law required separate accommodations on the railroad trains for the white and colored races, if the company had not provided separate cars for them, and the injuries the plaintiff had suffered were the proximate result of this failure to provide separate accommodations, he was entitled to recover. The proposition contained is that if there had been separate cars, the plaintiff would have been undisturbed in his seat, and therefore he may charge the consequences that befell him to the want of such separate cars. The court did right to refuse these instructions. It was proper to affirm as matter of law that there was no such connection or relation between the neglect to provide separate cars for the two races and the treatment of the plaintiff as to entitle him to claim anything in this action for such failure. The plaintiff sought and obtained passage on the train as it was, and cannot claim anything except for some wrong done him on that train. The connection of his injury with the neglect to furnish separate cars is about as [385] “proximate” as the drink of whisky he took in Holly Springs. Probably the relation of cause and effect between the drink and his rough treatment was more immediate than the neglect to furnish cars. We perceive no error in the action of the court on the instructions on either side. It is manifest that no liability for plaintiff’s injuries was incurred by the defendant, if its testimony is true, and that was left to the jury, which credited it. The utmost limit of the novel modern doctrine, that common carriers are responsible for injuries to passengers by fellow passengers, was stated in the opinion of the court, composed of two judges, in N. O. R. R. Co. v. Burke, 53 Miss. 200. That doctrine does not receive the assent of our judgment, and if in future, when the question may be presented for decision, we shall feel constrained to yield to that decision as authority for the rule it announces, we shall certainly not extend the doctrine so as to embrace any other than a case falling clearly within it. As the instructions in this case conform to the announcement in the case cited, we are not presented an opportunity to say more in just criticism of that decision, but are justified in what we have said in order to exclude the conclusion which might otherwise be drawn as to the view we • entertain of it. Affirmed.