Illinois Central Railroad v. Minor

Woods, J., delivered the opinion of the court. The motion of the appellee to dismiss the appeal.and to affirm the judgment of the court below must be denied. If the appellant had made its motion in the court below to set aside the third verdict, and the same had been overruled, two former verdicts for the appellee having already been set aside for errors not of law, and the appellant had excepted, and had then brought its appeal to this court, on a general bill of exceptions to this -action of the trial court, we could not have considered it for any purpose whatever, as has been repeatedly held in this state. See Strickland v. Hudson, and Bowers v. Ross, both in 55 Miss., and the earlier cases therein cited. What reason can be assigned, then, for requiring the appellant to do this vain and fruitless thing V That the proper course was pursued in excepting to the action of the trial court- in giving and refusing instructions, and in presenting the appeal on a special bill of exceptions is not open to controversy. See Rays v. McClary, 26 Miss., 404; Thornton v. Railroad Co., 29 Ib., 143 ; Garnett v. Kirkman, 33 Ib., 389; Parham v. Stith, 61 Ib., and the cases already cited in 55 Miss. 1. The action of the court in refusing the peremptory instruction prayed by the appellant is the error first assigned, and this assignment is elaborately and strongly supported on three grounds, viz.: (1) That no cause of action was presented by the declaration, nor was any made out by the evidence, a carrier not being required to protect a passenger from the assault of his fellow-passenger; (2) that the evidence fails to show that the injury complained of was inflicted by a fellow-passenger, or by any one on the train, or by any person under the control of the servants of the railroad company in charge of the train; and (3) that if the liability of the carrier to a passenger for injury inflicted by a fellow-passenger be conceded, then this case does not fall within that rule, because Minor voluntarily placed himself in a position of exceptional dan — 718 — ger, consented to the disorder, and did not claim the protection of the carrier or its servants. On the first contention we have to say, that, while the rule announced and applied in the case of Burke v. Railroad Co., 53 Miss., does not command the full concurrence of our judgment, yet we are not to be understood as denying all responsibility on the part of railroad companies for injuries suffered by one passenger at the hands of his fellow-passengers. Our dissatisfaction arises out of the application, mistakenly made, as we conceive,'to the facts of that case. The case, as it seems to us, involves the making of a bad precedent to meet a hard case. But the decision has stood unassailed for sixteen years, and the doctrine, with the limitations put upon it by the court in its opinion, has been accepted and acted upon as the rule of the passenger’s rights, and of the railway’s responsibility, through this long period, and, as intimated in Royston v. Railroad Co., 67 Miss., we “feel constrained to yield to that decision as authority for the-rule it announces.” But, as was declared by us in Royston’s case, “ we shall certainly not extend the doctrine so as to embrace any other than a case clearly falling within it.” The Burke case has been carefully reviewed by us, and its doctrine protractedly and repeatedly examined, and we decline to overrule the case and repudiate the rule. The second contention under this assignment we cannot consider. In the peculiar attitude in which the appeal is presented to us, we can only look to the evidence contained in the special bill of exceptions for the purpose of passing upon the alleged errors of law said to have been committed by the trial court. Of course, if it appeared that there was absolutely no evidence showing, or tending to show, that Minor’s injury was inflicted by a fellow-passenger, the peremptory instruction should have been given; but the record discloses much testimony tending to show that the hurt was done by a fellow-passenger, and this disputed question of fact has, by three successive verdicts, been found in Minor’s favor. — 719 — The third contention under this first assignment, to the effect that Minor voluntarily placed himself in a position of exceptional danger, consented to the risks of the riotous conduct of his fellow-passeugers, and did not claim protection of the company, strongly impresses us, and, if supported by evidence, would seem to put this case without the general rule that imposes liability upon the railroad company for injuries inflicted upon one passenger hy his fellow-passenger. If Minor, in fact, voluntarily put himself in a position of known, apparent, exceptional danger, and took the chances of hurt from his drunken and disorderly fellow-passengers on a Sunday excursion train, of negroes mainly, and- if he continued, from Memphis to Love’s Station, to retain his position in the face of great apparent danger, without any effort to avoid the same, and without any complaint to the railroad company’s servants, we would be inclined to tbe opinion that his case is exceptional, and not embraced in the rule announced in the case of Burke. But no such1 question was presented to the court below, nor was any such issue tried by the jury. To say now that the peremptory instruction should have been given for the railroad company, in view of the theory we are considering, on the principle volenti non fit injuria, would be to permit a new case to be made here, and the controversy determined on an issue never raised on the trial below. This we cannot do, much as we are impressed by the view now advanced by counsel in this court. 2. We come next to consider the contentions, numbered five and six in the abstract of counsel for appellant. These may properly be examined together, and, thus looked at, the contention is .this : that the third instruction given for the plaintiff was erroneous, in that it informed the jury that they were the judges of the amount of damages to be assessed, and that they should be governed by the evidence disclosing the circumstances of the case, without adding thereto the qualification that, under the peculiar attitude of this ease, they could not exceed the sum of $5,000, or a — 720 — sum not materially in excess of that awarded by the former verdict. The argument in support of this proposition is, that the trial court, in the exercise' of the power confided to it to prevent the gross injustice of unconscionable verdicts by juries, resulting from passion or prejudice, had twice set aside verdicts, one for $8,000 and the other for $10,000, on the sole ground that they were excessive, and the third trial having been had upon the evidence produced on the former trials, the court should have interposed its power to prevent a repetition of the imposition of damages in amount already held by the court to be excessive — the product of passion or prejudice; in other words, as we understand it, that the court, by the addition of the qualification named, should have prevented the jury from passing the bounds twice determined by the •court on the same testimony, to be proper. But we submit that such course on the part of the learned court, although taken professedly in vindication of the essential prerogatives and powers of a court of justice, would have been really a finding by the court, and would have been an invasion of the constitutional right of the appellee to have a finding by the jury- Say the counsel, in weighty words: “Under the constitution of our judicial system, the power is committed to the judge, in the exercise of a sound discretion, to check the imposition of unconscionable verdicts, the result of passion or of prejudice. It would be idle, and, we respectfully submit, a judicial farce, to concede such a power, if it is to be, not merely nullified, but even, as in this case, made to act as a soi’t of boomerang, simply by the persistence of successive juries. It would then be no power. Its only practical result would be to punish the defendant for an effort by the court to shield him within reasonable limits. The greatness itself of the passion, the very ivincibility of prejudice, will lead, inevitably, to the result attained here, that on the subsequent trials the verdict will be increased by the action of the court, — 721 — striving within the limits of its authority for the reverse, and, on the third trial, when the court and the defendant are run into the cul-de-sac of the statute,” the defendant will be without any protection from the passion or prejudice of the If the appellant had pressed the views impugning the strength and validity of our statute, which is thus indirectly assailed, upon the attention of the trial court in support of a motion for a new trial, and had pressed them here on us, a new trial having been denied below, we should consider and pronounce upon their weight. But, as the statute was not assailed on the trial below, it is impossible for us to intimate any opinion now; nor are we to be understood as making any intimation whatever touching the constitutionality of the statute complained of. 3. Having thus failed to agree with the counsel for appellant on any of the contentions considered, we come now, at. last, to consider the remaining error complained of to v^hich we think it necessary to advert. . It is asserted that the first and second instructions given for the appellee were erroneous and in conflict with the charges of the appellant. The first instruction complained of is objectionable because of its abstract character. It is a long compilation of mere abstract propositions, and contains no sort of reference to, or application of its statements of law to the case in hand. But it is not alone objectionable on account of this very prevalent vice of indoctrinating a jury by the statement of legal abstractions. The opening statement, the initial legal abstraction, is palpably incorrect, and was doubtless injuriously misleading. This instruction informs the jury that “ railroad companies are bound to exercise very great vigilance and care in maintaining order and guarding passengers against violence from whatever source arising,” etc. If this is correct, the jury was told that the highest degree of vigilance and care was the test to be applied to the conduct of the company’s servants in — 722 — guarding Minor and other passengers; or, to put it in another way, for the purpose of exposing its unsoundness, if the conductor and servants of the railroad company were in the slightest degree wanting in vigilance and care, then Minor was entitled to a recovery. Stated in any form, the proposition is not true. Nor do we understand the learned counsel for the appellee to so contend. Their position seems to be, that even if this charge be erroneous, in this particular, yet its hurtfulness is cured in other instructions given, in which the jury was told that reasonable care and diligence was the measure of the appellants accountability. In the face of the irreconcilable conflict in the instructions touching the measure of care and diligence on the part of the railroad company, can it be affirmed that the first instruction for appellee, which informed the jury that very great vigilance and care was the measure of appellant’s duty, may not have tended to produce the result arrived at? Can it be said that, in the absence of this erroneous instruction, the jury would have rendered the same verdict? We feel constrained to answer negatively. Wherefore, for this error of law committed by the court below in giving the first instruction for the appellee— The judgment is reversed, a venire de novo awarded, and the cause remanded.