Alabama & V. Ry. Co. v. Thornhill

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment in favor of Clarence Thornhill, an infant eleven years of age, who sued by a next friend to recover from appellant damages alleged to have been sustained by reason of having been knocked down and injured by one of its trains. According to the evidence of eyewitnesses introduced in behalf of appellee, he was at the time of the accident standing on appellant’s'railroad track at its intersection with a street in the city of Jackson, watching a baseball game, when one of appellant’s trains, without warning by bell or whistle, and when he was wholly unconscious of danger, approached him from the rear, struck him in the back, and injured him. According to the testimony of other eyewitnesses introduced in behalf of appellant, Thornhill was injured, without negiig’ence on the part of appellant’s servants, while he was attempting to jump on one of its moving trains. Objection was interposed to the following questions propounded to appellee on cross-examination: “Were you used to jumping on trains?” “Had you not on several occasions before jumped on moving trains, or attempted to jump on moving trains 1 ’ ’ Although the current of authority seems to be to the contrary, it may be that under some circumstances a person’s habit or custom may be admissible in evidence as tending to show the — 401 — doing on a specific occasion of an act which, is a.subject of habit or custom as to which we express no opinion. But this ease presents no such circumstances. An affirmative answer to these questions would not have established any regular habit or custom, but would simply have shown that appellee on other occasions had jumped or attempted to jump on moving trains, and such evidence, under all the authorities, is not admissible. The granting of appellee’s third and the refusal of appellant’s seventh instruction, both of which the reporter will set out in full, is assigned for error. The argument of counsel for appellant is that all of the facts and circumstances under which the injury was inflicted are in the evidence, and consequently the statutory (section 1985, Code of 1906) presumption of negligence arising by reason of the “proof of injury inflicted by the running of the locomotive or cars of” appellant has no application. That no doubt may hereafter exist as to what the rule governing the particular point here under consideration is, we will restate it, after an examination of all prior decisions of this court bearing thereon which have been called to or come under our observation. Railroad Co. v. Packwood, 59 Miss. 280. The evidence on the part of the appellee showed simply the killing of a horse by the running of the cars. The evidence for the defendant showed the facts and circumstances of the killing, from which it affirmatively appeared that its servants had not been guilty of negligence. There was a judgment for the appellant; but it was reversed by this court, on the ground that the statutory presumption of negligence was overcome by the proof, there being “nothing in the record to suggest that the witnesses were unworthy of credit, or that the jury in fact disbelieved them.” This case was approved in Railroad v. Holt, 62 Miss. 170, and followed Railroad Co. v. Thomas, 1 Miss. Dec. 317. — 402 — Railroad v. Dale, 61 Miss. 206. “The statute imposes upon the railroad company, the fact of the injury by their cars having been established, the burden of showing the exercise of all proper skill and care upon its part. ’ ’ Railroad v. Phillips, 64 Miss. 693, 2 So. 537. Appellee was injured by the running of the cars, and counsel for appellant argued that the statutory presumption here under consideration could not be invoked, for the reason that “the facts preceding and concurrent with the accident were all before the jury and were developed by the plaintiff;” that “the question of negligence was thus, by the act of the plaintiff, dependent wholly upon the facts, and there could reasonably be no presumption whatever;” that “the presumption must give place when the facts are in evidence, and the statute never was intended to apply in such cases.” See brief of counsel for appellant, 64 Miss. 700, 2 So. 537. The court rejected this contention, and held that the presumption could be invoked even when all the facts and circumstances were in evidence, but that, when such facts and circumstances were established, the presumption should yield thereto, and the question of negligence vel non should be determined solely therefrom. This case has been many times approved. Bedford v. Railroad Co., 65 Miss. 385, 4 So. 121. The court below instructed the jury peremptorily to find for defendant. The judgment was affirmed in part and reversed in part; the court saying: “It was wrong to instruct the jury to find for the defendant as to the gray mare, for as to that killing the evidence does not show that everything was done which could and should have been to avoid collision between the mare and the train. The only witness, the engineer, testified that when he saw her running to the railroad he sounded the cattle whistle, and that is all that he claimed to have done. ’ ’ Railroad v. Bourgeois, 66 Miss. 3, 5 So. 629, 14 Am. St. 534. The court, among other things, said: “When the — 403 — circumstances attending the injury are shown by the evidence, the case must then be determined by the jury on the facts proved, and not upon any presumption of negligence created by the statute.” Railroad v. Smith, 67 Miss. 15, 7 So. 212. The defendant asked and was refused the following instruction: “(3) The jury are instructed that, where the railroad company is shown to have killed stock, there is a prima facie presumption of negligence on its part, but that, when the facts and circumstances of the killing are shown, they cannot find for the plaintiff, unless those facts and circumstances show negligence on the part of the company.” It then asked and was refused a peremptory instruction. The response of the court to the assignment of error predicated on the refusal of these instructions was as follows: “The third instruction asked by the defendant was properly refused, for the effect of the statute (paragraph 1059 of the Code) is to devolve on the railroad company the necessity of exculpation from negligence in causing, the injury shown to have been done, and, unless it does this, it is liable. The court should have given the instruction asked by defendant that the verdict should be for it. There is no conflict in the evidence, and that of the defendant, which consists with that for the plaintiff, exonerates the defendant from all blame.” This case, in so far as it holds that proof of the facts and circumstances under which an injury was inflicted does not remove the necessity for resorting to the statutory presumption, is in conflict with the later cases of Owen, Nichols, Korter, Murray, and Puller, hereinafter referred to, and to that extent is thereby necessarily overruled. Hamlin v. Railroad Co., 72 Miss. 39, 16 So. 877. “A suit brought by appellant against the appellee to recover the value of two mules killed by a train of the appellee. The circumstances of the killing were fully testified to by eyewitnesses for the plaintiff, and by the servants of the — 404 — company in charge of the train, and other eyewitnesses for the defendant. Of this evidence the court said that, according to the testimony for the plaintiff, the injury was negligently inflicted, hut, according to that for the defendant, it was unavoidable.” The case having been submitted to a jury, there was a verdict for the defendant. "By the third instruction for the defendant, the jury was told that, the fact being proved that the engine of the defendant struck and killed the mules, it was prima facie evidence under the. statute of negligence, and, with no other evidence before it the jury should find for the plaintiff; ‘but, in the case before the jury, the circumstances attending the injury are shown.in evidence, and it will determine the case on the testimony, and not upon any presumption of negligence.’ ” In holding that this instruction was correctly granted, the court said: "We think the law wns correctly given to the jury. It was told that the fact of the killing of the mules entitled the plaintiff to a recovery, unless, by a clear preponderance of the evidence, negligence was disproved; but, as all the circumstances of the killing were in evidence, the jury should determine the question from the facts, and not from presumption. The whole effect of the statute is to devolve upon the defendant the burden of proof of due care; it is not required to carry this burden with the presumption of negligence again added as a rider. ’ ’ Owen v. Railroad Co., 77 Miss. 142, 24 So. 899. This case seems to have been decided upon the theory that the statutory presumption here under consideration was involved. The facts and circumstances of the case, which were disclosed by the plaintiff’s own testimony, were such that no inference of negligence on the part of the defendant could be drawn therefrom, and the court held that defendant was not liable, stating among other things, that "the production of the circumstances connected with the infliction of the injury removes any ground for resorting to any presumption of law in the matter. ’ ’ — 405 — Railway Co. v. Hays, 78 Miss. 319, 28 So. 939. The facts and circumstances were in evidence. The instruction complained of is not set out, but in the argument of counsel the court was requested to hold that the statutory presumption here under consideration had no application; counsel, among other things,- stating that: “Proof of the injury inflicted by the running of locomotives, etc., makes a prima facie case for plaintiff, but, when all the facts and circumstances are in evidence, then the jury should find for the defendant, unless they can say .that the evidence shows want of reasonable care to avoid the injury; but the burden of proof remains on the plaintiff, who must still make out his case by a preponderance of evidence.” The language.of the court in responding to this argument was as follows: ‘ ‘ The sole point made in the brief for appellant is that the second charge for plaintiff below was erroneous, in that it places the burden of proof on the defendant, if the jury be satisfied that the mule was killed'by the running of defendant’s train, to show the facts exculpating it from liability. We cannot agree with counsel that this instruction interferes with any decision treating of paragraph 1808 of the Code. If it did, the skill of counsel neutralized any misconception by his own numerous and adroit instructions. ’ ’ Drake v. Railroad Co., 79 Miss. 84, 29 So. 788. “Mc-Neill’s testimony makes it clear that the fire was set out by engine No. 10 on November 23d. The defendant was then under the duty to meet and explain away the prima facie case thus made. ‘For the purpose of rebutting the presumption, the evidence must be as broad as the presumption itself, and must satisfactorily rebut every negligent act or omission which might, under the circumstances of the case, reasonably or naturally have caused the fire.’ ” Nichols v. Railroad Co., 83 Miss. 126, 36 So. 192. In the language of the court: ‘ ‘ This is not a case in which — 406 — the" statutory presumption of negligence can be invoked. (Seb numerous cases cited in brief of appellee.) Where all 'jibe circumstances connected with an injury resulting' from the running of a railroad train are in evidence, this removes all necessity for resorting to legal presumption,’ because the presumption must always give way to proof.. In tblis case all the circumstances attending upon the accident áre in proof by the testimony of eyewitnesses, and' from that proof it is indisputable that the tragic event was tbe résult of appellant’s intestate’s own recklessness, and' this conclusion is borne out by bis own story, repeatedly told, after the event.” Railroad v. Brooks, 85 Miss. 269, 38 So. 40. “It was shown beyond peradventure that the injury was inflicted by the' running of the train. This was prima facie proof of nógligence, authorizing a recovery by plaintiff. To overcome this statutory presumption, it devolved upon the appellant to exculpate itself by establishing to the satisfaction of the jury such circumstances of excuse as would relieve it from liability.' But this statutory presumption cannot be overthrown by conjecture. The circumstances of the accident must be clearly shown, and the facts so proven must exonerate the company from blame. If the facts be not proA^en, and the attendant circumstances of the accident remain doubtful, the company is not relieved from liability, and the presumption controls. ’ ’ Korter v. Railroad Co., 87 Miss. 482, 40 So. 258. “The case for the appellant rests solely upon the statutory presumption of negligence which attaches in case of injury inflicted by the running of a train; but this presumption gives way when the facts attendant upon the accident are made known. In the instant case all the facts were thoroughly investigated and plainly appear in the record. Under the case made by the proof the presumption of negligence was met and overthrown; it being perfectly manifest that there was no negligence upon the part of the employees of the railroad company.” — 407 — Railroad Co. v. Landrum, 89 Miss. 399, 42 So. 675. “Since the evidence clearly showed that Landrum was killed by the running of the cars, the statute imposed upon this railroad company liability, unless the railroad company met the burden imposed by the statute, and showed clearly the facts attending the injury, and by such showing exonerated itself from blame.” Railroad Co. v. Hicks, 91 Miss. 273, 46 So. 360, 124 Am. St. 679. The court, at the instance of the plaintiff, instructed the jury in accordance with the statutory presumption here under consideration, and it was argued by counsel for the defendant that the “instructions should not have been given, because all the facts about this occurrence were in evidence.” This court approved the giving of the instruction with specifically responding to this argument of counsel, and, among other things, held that the statute should be “interpreted precisely as if it had been written thus: ‘Proof of injury inflicted by the running of locomotives or cars of such company shall be prima facie evidence of liability on the part of the company.’ ” Railroad Co. v. Murray, 91 Miss. 546, 44 So. 785. The testimony which was “sharply conflicting” embraced the facts and circumstances of the injury, and the court said: “It was not improper to give the charge, under Code 1906, par. 1985 (Code 1892, par. 1808), that the damage done was prima facie evidence of want of care. Vicksburg Ry. Co. v. Phillips, 64 Miss. 693, 2 So. 537. This may always be invoked where the injury is done by the running of the locomotives or cars, but, of course, must yield to established facts. Here there was sharp conflict in the testimony, and here, also, counsel took abundant care of the railroad company in their instructions.” Easley v. Railroad Co., 96 Miss. 396, 50 So. 491. “We are very much inclined to the view that the testimony offered to rebut the prima facie case made by the testimony of plaintiff under the statute leaves it a matter of — 408 — conjecture as to how this accident happened. When this is the case, this court has said, in the case of New Orleans, etc., R. Co. v. Brooks, 85 Miss. 269, 38 So. 40, and in Yazoo, etc., R. Co. v. Landrum, 89 Miss. 399, 42 So. 675, in construing this statute, that ‘mere conjecture would not meet the Burden of the statute, hut that the testimony for the railroad must clearly show how the injury occurred, and, in showing this, show further such facts as exonerate the railroad company.’ We hardly think that the testimony of the defendant company met this standard of requirement.” Railway Co. v. Bonner, 14 So. 462. “The verdict is not supported by evidence. The horse was killed in some way hy the train; hut the uncontradicted evidence exculpates the railway company from all blame.” Railroad Co. v. Hunnicutt, 98 Miss. 272, 53 So. 617, approves and followed Railroad Co. v. Brooks, 85 Miss. 274, 38 So. 40. Hollingshed v. Railroad Co., 99 Miss. 464, 55 So. 40. The facts and circumstances seem to have been fully disclosed hy the evidence, and the court said: “By instruction number 5, refused hy the court, the appellant sought to avail himself of section 1985, Code of 1906, which provides that ‘proof of injury inflicted by the running of the locomotives or cars’ shall make out a .prima facie case of negligence. The appellant was clearly entitled to the benefit of this statute. He was injured by the running of appellee’s locomotive. There is no dispute about that. The statute applies, regardless of whether the facts attending the injury are in evidence or not. ... It was therefore error to refuse this instruction.” Fuller v. Railroad Co., 100 Miss. 705, 56 So. 783. The Phillips, Landrum, Murray, and Hollingshed cases were approved, and the court then continued: “Presumption in all cases must yield to facts, yet they fail, not because of the law, but because of the facts, and completely destroy the presumption; and hence when the statute, which — 409 — is the law, gives this presumption the courts have no right to mate or charge a different rule. In so doing the court is substituting judge-made law for statutory law. Of course, when all the facts relating to the injury are in evidence, the court has a right to draw a conclusion based upon the facts, and in proper cases to give a peremptory instruction as these facts may justify. ’ ’ Railroad Co. v. Cole, 101 Miss. 173, 57 So. 556. After approving the quotation hereinbefore set out from Railroad Co. v. Brooks, together with the holding of this court in the cases of Railroad Co. v. Phillips, Railroad Co. v. Landrum, Easley v. Railroad Co., Railroad Co., v. Hunnicutt, and Fuller v. Railroad Co., it was held that proof of the proper equipment of the train, and that the employees of the defendant in charge thereof were keeping a vigilant lookout, is insufficient to rebut the statutory presumption in the absence of any evidence of what the situation and movements of the party injured were at the time he was injured. From this review of these cases, it seems reasonably clear that: (1) Proof of injury inflicted by the running of defendant’s cars is prima facie evidence of negligence, and, unexplained, entitles the plaintiff to judgment. (2) When the facts and circumstances under which the injury was inflicted have been ascertained, the presumption of negligence created by the statute disappears, and the defendant’s negligence vel non must then be determined alone from such facts and circumstances. (3) This prima facie presumption, however, is ñot a specific but a general one; that is, negligence is presumed in the doing or omission of any act that could have reasonably caused the injury, and consequently, in order that it may be rebutted, the evidence must disclose the doing or omission of every act from the doing or omission of which an inference of negligence vel non could be drawn. (4) When the facts and circumstances are in evidence, and there is no dispute relative thereto, and it appears — 410 — that only one reasonable inference can be drawn therefrom, -a verdict may be directed for either the plaintiff or the defendant as the case may be. (5) Even though the facts and circumstances are in evidence, and although there may be no conflict therein as to what these facts and circumstances are, unless they justify the court in directing a verdict, it is proper to charge the jury on request of the plaintiff that proof of injury by the running of the cars is prima facie evidence of negligence, and on request of defendant that, since the facts and circumstances under which the injury was inflicted are known, they will determine whether or not the defendant was negligent solely therefrom without resorting to any presumption of negligence. “Negligence is not simple fact in itself, but is rather an inference from facts.” 5 Words and Phrases, 4748. Ordinarily whether or not an injury was the result of a defendant’s negligence depends upon the inference to be drawn from the facts and circumstances under which it was inflicted. This statute relieves the plaintiff from proving these facts and circumstances by providing that proof of the injury shall be prima facie evidence of negligence; in other words, by providing that an inference or presumption of negligence must be drawn from the mere infliction of the injury. Since this presumption is a prima facie one, it must yield, as do all such presumptions, to the proof; that is, to the inference of negligence vel non proper to be drawn from the facts and circumstances under which the injury was inflicted. A presumption created only for the purpose of supplying prima facie an inference that might be drawn from a fact, were that fact known, disappears and cannot be resorted to when the fact becomes known, and thereafter such inference can be drawn only in event the fact warrants it. Where, as in the case at bar, there is a dispute as to the facts and circumstances under which the injury was inflicted, it cannot be said that they are known in the — 411 — legal sense until they have been found by the jury, and, if the jury is unable, for any reason, to determine from the evidence what the facts and circumstances are, they never, in the legal sense, become known, and consequently in such a ease the inference of negligence drawn from the infliction of the injury remains in effect and determines the defendant’s liability. Prior to the enactment of this statute, if a jury was unable to find the facts and circumstances of an injury, no inference of negligence relative thereto could be drawn, and the verdict must have been for the defendant. Under the rule then in force, the court could have very properly instructed the jury as requested by appellant that, “if they are unable on their oaths to find from the evidence that the plaintiff was guilty of negligence causing the said injuries, they will find for the defendant.” The statute, however, reverses this rale, and now when injury is shown the facts'and circumstances must be established; otherwise the verdict must be for the plaintiff. When the facts and circumstances are established, the verdict must then be according as they disclose the presence or absence of due care on the part of the defendant, and the jury may be so instructed. The case of Hamlin v. Railroad Co., 72 Miss. 39, 16 So. 877, in so far as it holds that, where the evidence relative to the facts and circumstances of an injury is in conflict, the jury may be instructed that they must determine whether or not the defendant was negligent from the evidence alone without aid from the statutory presumption, is overruled. It follows from the foregoing views that the court committed no error in granting and refusing the instructions here under consideration. Over the objection of appellee, the court permitted appellant to prove by a policeman that one of appellee’s witnesses, a white woman, frequented negro houses of — 412 — prostitution, and that she had paid several fines in Jackson. At the close of the evidence the court at the request of appellee charged the jury to “disregard the testimony of witness Harrell as to alleged conviction of the witness . . . of vagrancy in the city court of Jackson.” And at the request of appellant that, “although the court has instructed the jury to disregard the testimony to the effect that the witness . . . had been convicted of vagrancy, this does not require them to disregard any other evidence showing or tending to show her character as a prostitute as going to her credibility.” The granting of this first instruction is assigned for error. The error of the court consisted not in granting the instruction hut in admitting at all the evidence on which both of these instructions were predicated, for the veracity of a witness cannot be impeached by proof of her unchastity. Smith v. State, 58 Miss. 873; Tucker v. Tucker, 74 Miss. 99, 19 So. 955, 32 L. R. A. 623; Mackmasters v. State, 81 Miss. 374, 33 So. 2; Davis v. State, 87 Miss. 337, 39 So. 522. Counsel for appellant, however, state that the evidence excluded by this instruction was competent, because it' showed that the witness had been convicted of the commission of crime. The conviction of a witness may be given in evidence to impeach his veracity, under section 1923 of the Code, after he has denied such conviction; but this was not the course pursued here. Moreover, the conviction when denied by a witness must be proven in the manner in which matters of record are proven. Affirmed.