(dissenting). I cannot accept the views of the majority in this case either as to the law or as to its statement of the facts. I think the facts are stated -entirely- too strongly for the appellee, and that, where the court, differs as to the law applicable, it is highly important that the court agree as- to its facts, and that the contentions of each party be fairly set forth in the opinion. If the statement of the facts in the majority opinion was for the purpose of showing there was sufficient evidence to go to the jury, and if there was a disagreement among the members of the court as to whether the evidence was sufficient to go to the jury, the statement, of facts would be unobjectionable. However, all members of the court agree that the case on the facts was one proper to go to the jury, and the difference grows out of the giving of certain instructions.
I shall not undertake to set forth all the facts supporting the appellant’s theory of the case, as I am in no sense a partisan for either party. I deem it neeessary, Tiowever, to call attention to certain facts for the purpose of demonstrating the correctness of my view that there was error in the giving of instructions hereafter to be commented upon. It was the theory of the appellant, and its testimony sustains its theory, if accepted as true, that the appellant was entitled to the crossing at the time of the injury, and that it had a man with a flag on the crossing for the purpose of keeping any trains of the St. Louis & San Francisco from coming upon the cross*833ing while the Mobile & Ohio was in possession and entitled to the right of way. Mr. Underwood, of the Mobile & Ohio crew, testifies that he was standing on the crossing, protecting the crossing, and that Mr. Campbell, the plaintiff came upon the crossing in defiance of his flagging and in defiance of verbal warnings given him to keep off. He testifies that after Mr. Campbell ignored his flag and came on the crossing, he gave an emergency signal to the Mobile & Ohio crew to stop their cars, and that the crew, in undertaking to check their cars, applied the emergency brake, and that the cars came uncoupled by reason thereof. He is amply supported by numerous witnesses as to his statement about being on the crossing and /flagging and as to his version how the injury occurred. It is in proof that the oars: were of different heights, but that the cars and couplings conformed to the rules and regulations of the Interstate Commerce Commission, and that the couplings were in good condition. Each side had a cloud of witnesses to sustain, .its contentions, and there was a direct and palpable conflict in the evidence as to whether Campbell’s coming on,the crossing when he had no right to do so was the proxiT mate cause of the injury, or whether Campbell was on the right of way and the injury was due to the default and negligence of the appellant. It was highly important, therefore, that the instructions bearing on the questions involved should be free from error.
It was further in testimony and testified to by numbers of witnesses that the appellee was not injured at all, but that he ran down the gangway, being the regular method of exit from the engine,, and landed on the sidewalk on his feet, and that he did not fall at all, and that he stated immediately after the accident that he was not hurt, and he himself admits that shortly after •the accident he stated that he was not seriously hurt.
It is further testified to by a defendant witness that Campbell carried his train on to Amory on the day of *834the injury, and that he made no complaint about being injured, and that one of the cars, when near Amory, was derailed, and that he jumped from said car and sprained his ankle and received some injuries, and that he went to a physician in Amory for treatment for said injuries.- The physician at Amory was not introduced by Campbell, and the appellant could not introduce him because of the statute making communications to a physician privileged. Campbell ran to Tupelo from Amory the day following the injury, operating his engine, and then quit and returned to his home at Holly Springs, and was there examined by his own physician, which physician testified in the case. It appears from the physician’s examination that the injury to Campbell was principally an injury to his kidneys, and there was not shown, either by Campbell or his physician, that there v'as any permanent injury to his ankle or back, but the injuries claimed were internal. The physician further testified that the trouble he found with the kidneys might be caused in a different way, and from disease, and there was a total failure to show permanent disability other that the mere statement of the appellee and his physician than he could not further pursue his calling as locomotive engineer; that is to say, no facts were shown which would prove a permanent total disability. There was nowhere in the evidence, as I can see,, any fact or circumstance which would convince a person that there was total disability.
It was seriously argued by the appellant that there was not sufficient evidence to support the verdict, and that the overwhelming weight of evidence was against Campbell. We recognize that a jury who can see the witnesses, know their candor, know something of their demeanor and character, are better able to settle questions of fact than judges of this court, who only get the evidence from the printed page. If I were called upon to decide upon what appears in printed record, free *835from any rule of law, and not haying the advantage of seeing the witnesses and hearing them, I would he strongly inclined to accept the view that the evidence was not sufficient to sustain the verdict; but I recognize that a man of the probity of a Washington might outweigh, in the scale of weight and value in evidence, the testimony of numerous others who are unworthy of credit, and that there is no better system of determining facts than to have the judgment of twelve men of different avocations, exercising the powers of common sense, concurring in a unanimous conclusion. Long experience and observations of juries and jury trials convince me that the safest course is to rely upon the verdict of a jury where the evidence and law is fairly given to them, and I am not inclined to disturb their finding except for errors of law, either in admitting or rejecting evidence, of in the instructions bearing on the issues. But I think that certain instructions in this case are erroneous. Instruction No. 1 for the plaintiff below, which is set out in the majority opinion, informs the jury “that it was unlawful for a train, or part of a train, to back alongside a passenger depot at a greater rate of speed than three miles an hour and that within two hundred feet of said passenger depot a servant must precede the cut of cars not less than twenty feet nor more than forty feet, and that it is unlawful for a train, or part of a train, to go upon the crossing of another railroad track with its own, without coming to a full stop just before going on the crossing, and that if the jury are satisfied by a preponderance^ of the evidence that all or any of these laws were violated in the operation of the Mobile & Ohio train on the day of this accident, and that plaintiff received injuries on account of the said negligence of the said railroad company, then it is your duty, under the law, to return a verdict for him for full damages.”
*836The statute requiring trains to come to a full stop before going upon a public crossing has nothing in the world to say about full damages or any damages. It prescribes a course of duty, but does not give full damages. Section 4047 of the Code with reference to backing into and along a passenger depot is the only statute involved in the above instruction that authorizes the jury to give full damages regardless of mere contributory neligence. When the statute authorized the recovery of full damages without regard to contributory negligence, it meant undiminished damages, that is, full compensation for the injury without any deduction whatever. The statute was designed to protect the public around paásenger depots, and meant what it said when it came to a statement of the damages. The jury were peremptorily instructed in this instruction No. 1 to allow full damages in the event that either one of three statutes were violated, when two of the statutes embraced in the instruction did not authorize the jury to award full damages at all. To say that this instruction is not in conflict with the instruction given for the appellant, being No. 8 for the defendant, is to ignore the force and meaning of language. The one tells the jury that they were to give undiminished, complete, or full damages regardless of mere contributory negligence, and the other tells them that they will diminish the damages suffered to the extent of contributory negligence. Under the facts in this record there could be no dispute whatever that the cars did not. come to a full stop before going upon the crossing, and. if the jury were to give full damages if they believed this fact was equivalent to telling them peremptorily to find for the plaintiff for the full amount of damages regardless of whether he came upon the crossing in disregard of the flag of the defendant or not. If he came upon the crossing when, the Mobile & Ohio Railroad Company had a right to the crossing, and came without himself coming *837to a full stop and without looking to see the situation at the crossing, there could be no question but what the proximate cause of the injury was his own act and recklessness. The instruction No. 1 was drawn with skill for the very purpose, apparently, of eliminating the plaintiff ’s negligence from consideration of the jury.
It is idle to say that full damages does not mean anything. One of Webster’s definitions is ‘‘withoutoabatement or diminution,” which is the proper one to use in a sentence like the one in the statute. The legislature must be presumed to be familiar with the meaning of ordinary English language, and when they singled out a particular location and situation and authorized the recovery of full damages under that situation, when they do not authorize it in the other situations involved in this instruction, is to carry conviction that the word “full” was used advisedly in section 4047, and this presumption is greatly strengthened when we consider the evident purpose of section 4047. The majority opinion practically writes out of the law the words “full damages” when used in an instruction, and gives effect to it when used in a statute. I think the bar will have some difficulty in determining exactly what that section of the Code means when read in connection with the majority opinion. I is inconceivable how a court can reconcile instruction No. 1 with the law, and how theji can reach a conclusion that it is harmless error on the facts of this record. The argument in the majority opinion that instruction No. 1 was modified or affected by instruction No. 8, to my mind, is without merit. The two instructions are absolutely inconsistent and in conflict and present two direct and contrary rules for the guidance of the jury.
Instruction No. 2 for the plaintiff tells the jury that:
“The measure of damages, if the jury believe the plaintiff had been injured by the negligence of the railroad company, is the amount that would compensate him *838for his injuries, and that in computing this amount it is proper for the jury to take into consideration his actual damages, including mental and physical pain, loss of time, expense and doctor’s bill, drugs, etc.; and, if the jury believe by a preponderance of the evidence that the plaintiff’s injuries received by the negligence of the defendant are of a permanent nature, then they may compute his future earning capacity by his expectancy multiplied by his earning capacity, if the jury are satisfied from the evidence that he had an expectancy and an earning capacity.”
This instruction does not state the law correctly, and is radically misleading. In the first place, it tells the jury that the measure of damages is the amount that will compensate him for the injuries, ignoring any reduction on account of his own negligence, if the jury believe he was negligent, but tells the jury that if the defendant was negligent, they will give the plaintiff what will compensate him for his injuries, and that if they believe his injuries are permanent, this measure is the earning capacity multiplied by the expectancy. It wholly ignores any reduction for contributory negligence, if the plaintiff was guilty of contributory negligence in going upon the crossing, which the defendant’s evidence tended to prove. It is absolutely vicious in this: That it tells the jury that if plaintiff received injuries and such injuries are permanent, then they may compute his future earning capacity by his expectancy multiplied by his earning capacity, wholly ignoring the question as to whether the disability from the injuries is total disability. It is claimed that the plaintiff sprained his ankle. The jury may have believed that this was a permanent injury to the ankle, in which event they would proceed under this instruction to allow his earning capacity multiplied by his expectancy. There is no pretense in the evidence that the plaintiff, after the injury had no capacity to earn something in the way of a livelihood; even on his own testimony and that of his physician this deduction *839could not justly be drawn. There is a vast difference between permanent injury and total disability.
Again, the instruction is faulty in that it does not contain a hypothesis that the present value of his expectancy is to be allowed instead of the total amount which would result from calculating the earning capacity by the expectancy. It is manifest that if the plaintiff was not totally disabled, he was not entitled to his full expectancy, even at its cash value, let alone its value multiplying the expectancy by the yearly earning capacity, as the instruction states it. .
In considering this instruction, we are bound to consider it in the light of the evidence in the record, and, taking the evidence as a whole, it does not justify an assumption of permanent injury resulting in total disability, and to say that this instruction is not erroneous and misleading is simply to trifle with justice. The allowance was for ten thousand dollars, a very substantal sum for the character of injury shown even on the plaintiff’s own testimony. This instruction cannot be reconciled or modified by any instruction given for the defendant, or for either party to the suit for that matter, in the record. If we assume thal the jury found that the plaintiff was negligent in going upon the crossing over the flag of the defendant, and that the jury undertook to diminish his full damages estimated by multiplying his expectancy by his earning capacity and deducting therefrom the amount that his own negligence contributed to the injury, the finding of the jury may well have warranted the belief they allowed the full expectancy under this erroneous instruction. It is impossible to reconcile the instructions in this case, applied to the facts and the verdict rendered by the jury, with any idea that substantial justice was done. The instructions were glaringly misleading. The defendant’s rights were wholly ignored in the giving of these instructions. Every person, great or small, rich or poor, individual or corporation, ought to be able to secure justice in the courts of the *840laud. It is the solemn duty of the supreme court to overlook and supervise the trials of the lower courts with the view of seeing that justice is administered with a fair and impartial hhnd, that the law is given fairly and equally to the litigants, as applicable to the facts and evidence in the case.
There are other errors in the record, hut if the two instructions commented upon were eliminated, we would not consider these errors reversible; but when we take the whole record and look at this trial as a completed performance, the conviction is overwhelming that there has been a miscarriage of justice and a gross wrong to the defendant in this trial.
For the foregoing reasons I am of the opinion that the cause should be reversed and remanded.
As the cause is affirmed and there is no further trial to be had, I do not comment on the particulars of other features of the record.