Mississippi Central Railroad v. Pillows

Whitfield, C. A very earnest argument has been made to the effect that this case should be reversed on its facts. We have carefully read the record, and we are not prepared to yield to this suggestion. There is certainly sufficient testimony to uphold the verdict, if the jury believed the witnesses for the plaintiff, and the verdict establishes the fact that they did so believe. The most serious contention of the appellant is that the second instruction for . the plaintiff is erroneous. [540] That instruction is in the following words: ‘ ‘ The court, instructs the jury that if they believe the porter, recklessly and in total disregard of the plaintiff’s position, willfully pushed him from the train, while it was in motion, and because of this the plaintiff’s leg was cut off, then their verdict should he for the plaintiff, regardless of the fact whether he was a passenger or trespasser, or had a ticket or not.” It is insisted that the declaration, as originally framed, proceeded upon the theory that the railroad breached its duty in failing to carry a passenger safely to his destination as shown by the ticket which he alleged he had purchased, and that this instruction counts upon a different ground, to-wit, that the porter recklessly and willfully pushed the plaintiff from the train while it was in motion. As amended, the declaration did charge that the brakeman or flagman “shoved him with great force, and caused him to lose his balance, without fault on his part, and he fell from said train and under it, and thereby the injury was caused.” If the amendment does not exactly allege the cause of action in the precise language of the instruction, it seems to us that it does substantially do so at least. The argument for appellant is that it did not substantially do so, and that consequently the jury, by this charge, were directed to base their verdict on a statement of facts different from the statement counted on in the declaration, even as amended, and that, since the allegations and the proof must correspond, this charge is fatally erroneous. This objection to this instruction is made for the first time in this court, as appears from the sixth ground of the motion for a new trial, which is in the following words: “Because' the court erred in giving the second instruction given the plaintiff, which is erroneous, because it omits the words, ‘from the evidence,’ and permits the jury to assess damages and to find a verdict, against the defendant upon their belief alone, whether [541] said belief grows out of or is based upon tbe testimony introduced.” It is thus made clear that this objection to this instruction was not made in the court below. If it had been made, of course the declaration could have been instantly amended to conform to the instruction. It cannot be allowed to make that sort of an objection so easily cured-by amendment in the court below, in the .supreme court, for the first time. This has been expressly decided in Georgia Pacific Railway Company v. West, 66 Miss. 310, 6 South. 207. Judge Campbell, speaking to this direct point, said for the court in that case: “We are not disposed to regard the objection to the instructions on the ground of want of applicability to the issue made by the pleadings, since if that had been urged in the court below, when the instructions were presented and found valid, an immediate amendment should have been ordered.” This is not only a thoroughly sound rule of practice, but one absolutely necessary. This objection is therefore not -tenable. The other objection to this instruction, that the words “from the evidence” were left out after the word “believe,” presents an error which we think is fully cured by the first instruction given for, the defendant below. That instruction is in these words: ‘ ‘ The court instructs the jury that they must be governed in their verdict by the preponderance of the testimony introduced before them. ’ ’ And every other instruction given for the plaintiff, and for the defendant, announces the same principle. The words “from the evidence” are expressly written into the fifth, sixth and seventh instructions for the defendant, and into the first instruction for the plaintiff. We do not think this error, therefore, a reversible one. It appears from the record, page 108, that the report made by the witness Marero was introduced in evidence. Objection on that point is therefore inapplicable. We do not think the court erred in excluding what Miles Pillows told Dr. Perry about getting a ticket. [542] Miles Pillows was a nominal plaintiff merely, having no interest in the suit, and, besides, the statement was not made in the presence of the real plaintiff, the appellee. Affirmed. Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated, the judgment is affirmed.