Tendall v. Davis

Holden, J., delivered the opinion of the court. This is a direct appeal by Leo Tendal!, who recovered a judgment for one hundred and seventy-eight dollars against the Illinois Central Railroad Company as damages for personal injuries sustained by him on account of being struck by a locomotive, and the railroad company cross-appeals. The complainant of the appellant here is that the amount allowed him by the jury is inadequate, and the railroad company cross-appeals on the ground that it was entitled to a peremptory instruction against liability, because the injury was not proximately due to the negligence of the railroad company in the unlawful rate of speed. The injury occurred in the following manner: The appellant had deposited his hand baggage near the railroad track at the depot where he intended to board the passenger (rain; when the passenger train approached the depot he [35] proceeded to where his baggage was located, and stopped over to pick up his suit case, when he was struck by the pilot beam of the engine and seriously hurt; the train was proceeding to the usual stopping place for passengers, and the injury Avas due to the fact that appellant, in stooping over to pick up his suit case, got too close to the track, within the danger zone, and the protruding pilot beam struck him. The conflicting testimony in the case shoAvs that the train was running at an unlawful rate of speed at the time of the injury, and it is claimed by the appellant that the excessive speed was the proximate cause of the injury, while the railroad company contends the negligence of the appellant was the sole cause of the injury, and not the speed. We think the direct appeal on the ground of inadequacy of damages alloAved is untenable for the reason that the appellant was guilty of gross negligence in going so near the track as to be struck by the pilot beam, and the jury therefore Avas warranted, under our contributory negligence statute, in diminishing the amount of damages, as they did, in proportion to the negligence of the injured party. There seems to be no excuse or mitigating circumstances in this case upon which the appellant could have reasonably acted in walking into the dangerous place in front of the approaching train Avhich he could plainly see, hear, and possibly feel, before it reached- and struck him. The contributory negligence statute was enacted to prevent a bar of recovery where the injured person was guilty of negligence proximately contributing to the injury; but it also plainly means that the amount of damages awarded 1o the injured party must be diminished in proportion to his oAvn negligence which contributed to the injury. This court has so held, and Ave merely repeat the rule in again announcing that it is the duty of the jury to diminish on account of contributory negligence, and, where it is manifest that the jury has failed to do so, the court will not permit the verdict to stand. Therefore Ave are of opinion that the jury was eminently correct in diminishing the [36] amount of damages in this case, and the one hundred and seventy-eight dollars is not inadequate in view of the gross negligence of the main appellant. Y. & M. V. R. R. Co. v. Williams, 114 Miss. 236, 74 So. 835. Appellant made no motion for a new trial in the lower court. This would defeat his appeal as to inadequacy of damages. Cocoora v. Vicksburg Light & Traction Co., 126 Miss. 713, 89 So. 257. It is our judgment also that the- cross-appeal is without merit, for the reason that the testimony, though disputed, shows that the train was moving at an unlawful rate of speed at the time of the injury, and it was well within the province of the jury to find that the excessive speed proximatelv contributed to the accident, because it was clearly within the bounds of reason to infer that, had the train been running at six miles an hour instead of twenty when it struck appellant, he probably would not have been at the place of danger when the train reached that point. A few seconds of time in such a case might have caused a different story. At all events we cannot say that the finding of the jpry is not reasonably supported by the evidence. This being true, the cross-appeal must fail. The judgment of the lower court on direct and cross-appeal is affirmed. Affirmed.