Gulf & S. I. R. v. Carlson

Anderson, J., delivered the opinion of the court. (After stating the facts as above). At the conclusion of the evidence the court, at the request of the defendant bus company, directed a verdict in its favor and declined appellant’s request for a directed verdict. The action of the court in directing a verdict for the bus company and refusing to direct a verdict for appellant is assigned as error. We will consider first the question whether the court erred in refusing to direct a verdict for appellant. We are of opinion that there was sufficient evidence to go to the jury on the proposition that appellant was violating section 4045, Code of 1906, and section 6669, Hemingway’s Code, at the time of the collision, and that the collision might not have taken place except for the violation of said statute by appellant. That statute provides in substance that every locomotive engine shall be provided with a bell of at least thirty pounds weight, or a steam whistle which can be heard distinctly at a distance of three hundred yards, and the railroad company shall cause the bell to be rung or the whistle to be blown at a distance of at least three hundred yards from all highway crossings, and the bell shall be kept ringing or [619] the whistle kept blowing until the engine has stopped or crossed such crossings. Appellant argues that there was nothing in the evidence to show positively that this statute was violated; that the testimony of the witnesses on the subject was negative; that their evidence went no further than to show that they heard neither bell nor whistle. We find that appellant is mistaken. The witnesses Grantham and Hamburger both testified that they were positive that when they first saw the approaching train it was only a very short distance from them,, and neither the bell was ringing nor the whistle blowing. We think it was a question^or the jury whether that was true or not, and, furthermore, whether, if the statute was violated, such violation contributed proximately to' the injury complained of. The next question is whether the court erred in directing a verdict for the bus company, and, if it did err, whether such error was harmful to appellant. Appellee’s attorneys scarcely undertake to justify the action of the court in directing a verdict for the bus company. Under the undisputed facts of the case to do so was palpable error. The driver of the bus either drove upon the crossing without looking or listening for an approaching train, or he saw the approaching train and decided that he could clear the crossing before the train reached it. In either event he was guilty of gross negligence. Appellee’s husband was without any fault whatever. His life was taken as the result of the collision between appellant’s train and the bus. Such a catastrophe could not happen without the fault of some one. The evidence shows without conflict that the collision and injury resulted either from the joint negligence of appellant and the bus company, or the negligence of one or the other. If they were joint tort-feasors they were both jointly and severally liable for the injury. One of appellee’s attorneys in the opening argument to the jury, in comment [620] ing on the question as to whether appellant or the bus company was liable for the injury, used this language: “Gentlemen of the jury, it is undisputed that the deceased was without fault at the time of the collision, and that somebody is responsible to his widow in damages for his death. His honor on the bench has told you that the bus company, the defendants, Lott and Steele, are not liable, and the only other defendant who could be liable is the Gulf & Ship Island Bailroad. ” And in the closing* argument, another one of appellee’s attorneys, in discussing the same question, used this language : “Gentlemen, the court has instructed you that the bus company is not liable in this case. It is conceded that one or the other of the defendants is liable, and should pay full damages for the death of plaintiff’s husband. It is your duty to return a verdict against the railroad company in this case in an amount sufficient to fully compensate the plaintiff for the loss that she sustained.” In each instance the argument was objected to by appellant and its objection overruled, to which action of the court appellant took a special bill of exceptions, embodying therein the language of counsel above ,set out and the rulings of the court thereon. This is not a case where the directed verdict was in favor of a defendant joint tort-feasor who was without fault. On the other hand, it was in favor of one whose negligence proximately contributed to the injury as was overwhelmingly shown by the evidence. Appellee’s attorneys were fully justified by the action of the court in directing a verdict for the bus company in making the argument to the jury above set out. In view of the fact that appellee’s husband was without fault, and that the fault of the bus company could not be charged to him, and that the collision and injury was the result of either the joint tort of appellant and the bus company, or of the one or the other alone, the action of the court in directing a verdict for the bus company [621] simply meant that the bns company was without fault and the appellant alone was at fault. In other words, it meant that appellant alone was liable for the injury. If the court had expressly directed the jury to return a verdict against appellant on the question of liability it could not have been more harmful than what was done. The action of the court was tantamount to that, and the jury could not have understood it otherwise. Certainly under the evidence in this case no such an instruction was proper. On the contrary there was ample evidence to justify a verdict exonerating appellant from any fault whatever. In the ease of Capital Traction Co. v. Vawter, 37 App. D. C. 29, Ann. Cas. 1912D, 1059, it was held that, at the close of the evidence in a case against joint tort-feasors, the court may direct a verdict in favor of one of the defendants. But, nevertheless, before so doing it ought to clearly appear that there is no evidence tending to show liability on the part of the party so dismissed, and that it should also be clearly apparent that no injury will thereby be inflicted upon the remaining codefendant. Appellee, to sustain the action of the court in this respect, relies principally on I. C. R. R. Co. v. Clarke, 85 Miss. 691, 38 So. 97; Nelson v. I. C. R. R. Co., 98 Miss. 295, 53 So. 619, 31 L. R. A. (N. S.) 689; St. L. & S. F. R. R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885, 46 L. R. A. (N. S.) 352; Y. & M. V. R. R. Co. v. Hardie, 100 Miss. 132, 55 So. 42, 967, 34 L. R. A. (N. S.) 740, 742, Ann. Cas. 1914A, 323. We are of opinion that none of those cases is in point. They simply hold that because under the law joint tortfeasors are both jointly and severally liable, the discharge of one either by the action of the court or verdict of the jury does not discharge the other. It' is not that appellant was released from liability by the directed verdict in favor of the bus company. No such contention as that is made by appellant, and, if it were, there would be no ground for it. The complaint is that the action of the court in erroneously directing a verdict [622] for tlie bus company under tlie circumstances rendered sncb action tantamount to directing a verdict against appellant, the joint tort-feasor, on the question of liability. If the court had been justified in discharging the bus company, of course its action would have been harmless to appellant. And it is true that the bus company’s discharge under the circumstances operates as a complete acquittal of it, of the injury complained of, in default of appeal by appellee from the action of the court in that respect. But when the case goes back and is tried again no harm can result to appellant from that action. There will be no occasion for the court to again repeat the error by directing a verdict for the bus company, because that has already been done and the judgment in its favor must stand. Another trial therefore can and should proceed without any harm to appellant growing out of such erroneous action of the court on the former trial. We hold that the error of the court in directing a verdict for the bus company, which was accentuated by the argument of appellee’s attorneys, was harmful to appellant. Reversed and'remcmded.