Alabama & V. Ry. Co. v. Searles

• Decision Date: 12 March 1894
• Citation: 71 Miss. 744,16 So. 255
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. CHARLES J. SEARLES
• Court: Mississippi Supreme Court

16 So. 255

71 Miss. 744

ALABAMA & VICKSBURG RAILWAY CO. v. CHARLES J. SEARLES

Supreme Court of Mississippi

March 12, 1894

FROM the circuit court of Warren county. HON. JOHN D. GILLAND Judge.

The tenth instruction asked by defendant, and which the court holds was properly refused, is as follows: "The court instructs the jury that evidence that it was the duty of the defendant's car-inspectors to inspect every car before it was used, and reject every car unfit for use, and that such inspectors invariably performed that duty, and that cars found unfit were never used, is competent to prove that the cars were in good order and condition."

The instructions for the defendant, which the court holds were properly modified, are as follows: "If the jury is satisfied by such evidence as could reasonably be expected to be produced by the defendant that the cars were sound, and not leaky when they started from Vicksburg, they will find for the defendant." "If the jury is satisfied by such evidence as could reasonably be expected to be produced by defendant that the cars were sound, and not leaky, they will find for defendant." The words stricken out by the court are italicized.

The first instruction for the plaintiff, the giving of which the court holds was proper, is as follows: "The jury are instructed that a railway company is bound to safely keep and transport freight received by it to he conveyed over its line, so long as it remains in its custody; and that where as in this case, the freight was placed in cars furnished by defendant, and sealed by defendant, if the expectation and understanding was that the cars were to be carried through unopened, then the company is held to be an insurer of the safe condition of the cars, subject only to any changes which may be shown to have taken place in their condition after leaving defendant's custody.

Judgment affirmed.

Martin Marshall, for appellant.

The averment of the declaration is that the difficulty arose while the oats were in the custody of the defendant. By the terms of the bill of lading, defendant's responsibility ceased upon delivery to the connecting line. It is not disputed that the oats were safely carried over its line, and delivered to the connecting line in the same condition as when received. An the damage did not occur while the oats were in defendant's custody, there could not be any recovery. The variance, in the absence of any amendment, is fatal. A plaintiff who avers a particular state of facts is entitled to a verdict on proof of the facts averted. If he proves a different state of facts, although in themselves constituting a right of action, he cannot recover. 2 Thompson on Trials, § 2251. Whether there in a variance, is for the court. 1 Ib., § 1028.

It was error to refuse the tenth instruction for the defendant. It is not the function of the jury to know the law of the case and it was the duty of the court to inform it that the evidence referred to in the instruction was competent to prove the suitableness of the cars. By refusing the instruction, the jury was left without any knowledge that such testimony was competent to show that fact. That it was competent, see Greenleaf on Evidence, § 40. While the court may not instruct upon the weight, it has the power to judge of the tendency of evidence. Hilliard on New Trials, 283, 284.

It was error to modify the third and fourth instructions asked by defendant. The effect of this was to withdraw front the jury troy information as to what kind of evidence the law permits as tending to prove facts, or as to the law not expecting an impossibility, and that the evidence was only required to be such an was reasonable.

The first instruction was erroneous in announcing that defendant was an insurer of the safe condition of the cars, subject only to changes taking place after leaving its custody. There is no element of insurance in this case. There was no contract to deliver the goods except to connecting lines. It is conceded that the oats were not damaged while in defendant's custody; and the liability, if any, must he based on the theory, without any corresponding allegation in the declaration, that defendant was negligent in that it furnished leaky ears. The plaintiff assumes the burden of proving that to be a fact, and then drops the burden and appeals to the rule governing, not such cases as this, but those applicable to a case where the defendant had not by contract limited its liability. The rule that a railroad company is an insurer is relaxed in modern times. Hutchinson on Carriers, 181; 2 Wood on Railways, 1049. Now it is not liable for injuries resulting from defects that no reasonable degree of care or vigilance could have detected. While the company is bound to exercise the highest degree of care in the selection of machinery, ears and other appliances, and in the construction of its road-bed, and keeping the same in repair, yet it is not liable for the result of an accident which could not have been prevented by the exercise of such care. 2 Wood on Railways, 1054. The most the court should have announced to the jury would have been that the defendant should have exercised the highest reasonable degree of care. It was error to say that it was an absolute insurer of the safety of its cars.

Dabney & McCabe, for appellee.

The case for plaintiff on this appeal is stronger than on the former appeal, widen the court held that the case was a proper one for the jury to pass upon. The instructions were very liberal in defendant's favor. If there was any accident to the cars after leaving Meridian, it would have been an easy matter for defendant to have proved it. There was no error of law committed.

OPINION

COOPER, J.

This case, as developed on the last trial in the lower court, presents in its principal issue no materially different aspect from that presented when it was first tried, and, upon an appeal then prosecuted, it was held by this court that a peremptory instruction for the defendant could not be supported, because there were disputed facts on which the jury might find for the plaintiff. Searles v. Railway Co., 69 Miss. 186, 13 So. 815.

The peremptory instruction asked by the appellant was properly refused. The action is one to recover for injury to three car-loads of oats shipped by the plaintiff from Vicksburg, in this state, to purchasers in Atlanta, Ga. and all the evidence tends to prove that the injury was caused by the oats being exposed to rain, either before they were shipped or while in transit. The shipments were made under special contracts with the defendant company, by which all responsibility on its...