Alabama & Vicksburg Railway Co. v. Groome

• Decision Date: 27 June 1910
• Docket Number: 14248
• Citation: 97 Miss. 201,52 So. 703
• Parties: ALABAMA & VICKSBURG RAILWAY COMPANY v. DANIEL H. GROOME
• Court: Mississippi Supreme Court

52 So. 703

97 Miss. 201

ALABAMA & VICKSBURG RAILWAY COMPANY v. DANIEL H. GROOME

No. 14248

Supreme Court of Mississippi

June 27, 1910

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Groome appellee, was plaintiff in the court below; the railway company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

Hirsh Dent & Landau and McWillie & Thompson, for appellant.

The first instruction given for plaintiff invoked the doctrine of "res ipsa loquitur" and the case was made to depend materially on the applicability of that doctrine. This we think was error. The doctrine was wrongfully invoked and had no application to the case. The instruction burdened the defendant with a presumption not of fact but of law erroneously created by it.

The weight of authority will show, even if the doctrine is applicable at all where the relation of master and servant exists that the mere happening of an accident, caused by a defect in a platform, or bridge, or roadway, does not arise to the dignity of a presumption of law, which the court must recognize and apply, but is simply an inference of fact from which a jury may or may not find negligence on the part of the master. 26 Cyc. 1142, 1143, 1410, 1411, 1412; 20 Am. & Eng. Ency of Law (2d ed.), 92, 94; Thompson on Negligence, § 7637; Labatt on Master & Servant, § 834.

The Mississippi cases (Brown v. Yazoo, etc., R. Co., 88 Miss. 687, 41 So. 383; Mobile, etc., R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, and Mississippi, etc., Oil Co. v. Smith, 48 So. 735), are not contrary to our contention. In all cases of this character, where the master is only chargeable with negligence, when he had or ought to have had notice of the defect (and the evidence shows that although the platform was in constant use, neither the plaintiff nor his witness observed any defect therein), the only sound, safe and reasonable rule is that the jury may infer negligence from all the facts, but are not bound to do so, and that negligence is not to be presumed as a matter of law. The following authorities sustain our view. Alabama: Bivins v. Georgia, etc., R. Co., 11 So. 68; Louisville, etc., R. Co. v. Davis, 8 So. 552; Louisville, etc., R. Co. v. Campbell, 12 So. 574; Birmingham, etc., Co. v. Sawyer, 47 So. 67. Arkansas: St. Louis, etc., R. Co. v. Hill, 94 S.W. 914; Chicago, etc., R. Co. v. Murray, 109 S.W. 549; Chicago, etc., Co. v. Cooper, 119 S.W. 672. California: Brymer v. Southern Pac. R. Co., 27 P. 371; Springfield v. Main Street R. Co., 91 Cal. 48, 27 P. 590; McDonald v. Timber Co., 94 P. 371, 590. Colorado: City of Greeley v. Foster, 75 P. 351; Denver, etc., R. Co. v. Robinson, 6 Colo.App. 432, 40 P. 480; Denver, etc., R. Co. v. McComas, 7 Colo.App. 121, 42 P. 676; Bishop v. Brown, 14 Colo.App. 535, 61 P. 50; Kellogg v. Denver City R. Co., 72 P. 609. Connecticut: Lennon v. Rawitzer, 19 A. 334. Delaware: Reed v. Queen Anne R. Co., 57 A. 529. Georgia: Palmer Brick Co. v. Chenall, 47 S.E. 328; Sinkovitz v. Peters, etc., Co., 64 S.E. 93. Iowa: Baldwin v. Railroad Co., 68 Iowa 37, 25 N.W. 918; Case v. Railway Co., 64 Iowa 762, 21 N.W. 30; Kuhns v. Railway Co., 70 Iowa 565, 31 N.W. 868; Haden v. Railroad Co., 99 Iowa 735, 48 N.W. 733; Brownfield v. Chicago, etc., R. Co., 77 N.W. 1038; Bergman v. Altman, 104 N.W. 280. Indiana: Chicago, etc., R. Co. v. Fry, 28 N.E. 989; Southern Indiana Ry. Co. v. Baker, 77 N.E. 64. Illinois: Chicago Telephone Co. v. Schulz, 121 Ill.App. 573; Eagle Brewery Co. v. Luckowitz, 138 Ill.App. 131, 85 N.E. 213, 235 Ill. 246; Galloway v. Chicago, etc., R. Co., 84 N.E. 1067, 234 Ill. 474; Barnes v Danville Street Ry. Co., 85 N.E. 921, 235 Ill. 566. Kansas: Lane v. Missouri, etc., Ry. Co., 68 P. 626. Kentucky: Dana v. Blackburn, 90 S.W. 237; Vissman v. Southern Ry. Co., 89 S.W. 502. Louisiana: Henry v. Brackenridge L. Co., 20 So. 221. Maine: Pellerin v. International Paper Co., 52 A. 842; Nason v. West, 78 Me. 253; Wormell v. Maine, etc., R. Co., 79 Me. 397, 10 A. 49. Maryland: Gans Salvage Co. v. Byrnes, 62 A. 155. Michigan: Fuller v. Ann Arbor R. Co., 104 N.W. 414. Minnesota: Davison v. Davison, 48 N.W. 560. Missouri: Oglesby v. Missouri, etc., R. Co., 76 S.W. 623; Klebe v. Parker, etc., Co., 105 S.W. 1057. New Jersey: Baldwin v. Atlantic City R. Co., 45 A. 810; Dentz v. Pennsylvania R. Co., 70 A. 164. New York: Grant v. Pennsylvania, etc., R. Co., 31 N.E. 220; Hudson v. Lehigh Valley R. Co., 194 N.Y. 205, 87 N.E. 85. North Carolina: Womble v. Merchants, etc., Co., 47 S.E. 493; Stewart v. Van Deventer, etc., Co., 50 S.E. 562. Ohio: Huff v. Austin, 21 N.E. 864. Oklahoma: Neeley v. Southwestern, etc., Co., 75 P. 537. Oregon: Duntley v. Inman, etc., Co., 70 P. 529. Pennsylvania: Allen v. Kingston, etc., Co., 61 A. 572. Rhode Island: Venburr v. Lafayette, etc., Mills, 60 A. 770. South Carolina: Green v. Southern. Ry. Co., 52 S.E. 45. Tennessee: East Tennessee, etc.. R. Co. v. Lindamood, 78 S.W. 99. Texas: Missouri, etc., R. Co. v. Crowder, 55 S.W. 380. Utah: Christensen v. Oregon, etc., R. Co., 99 P. 676. Virginia: Moone Lime Co. v. Johnston, 48 S.E. 557; Washington: Hughes v. Oregon Imp. Co., 55 P. 119. West Virginia: Stewart v. Ohio, etc., R. Co., 20 S.E. 922. Wisconsin: Spille v. Wisconsin, etc., Co., 81 N.W. 397. Supreme Court of United States: Patton v. Texas, etc., Ry. Co., 179 U.S. 658.

Under the instruction of the court the defendant was burdened with a presumption of law which necessarily affected the result. For cases directly in point to sustain our contention that where specific negligence is charged it must be proven, we refer to the following: East Tennessee, etc., Co. v. Daniel (Tenn.), 42 S.W. 1062; Oglesby v. Missouri, etc., R. Co. (Mo.), 76 S.W. 623; Palmer Brick Co. v. Chennall (Ga.), 47 S.E. 329; Lone Star, etc., Co. v. Willie (Tex.), 114 S.W. 186; McLean v. Schoenhut (Pa.), 73 A. 1058; Crampo v. Chicago, etc., Co., 137 Ill.App. 63.

S. S. Hudson, for appellee.

[The reporter has been unable to find the brief of counsel for appellee. It was withdrawn from the record or lost before the case was reached for reporting, hence no synopsis of it is given.]

OPINION

SMITH, J.

Appellee, an employe of appellant, in the discharge of his duty as such, stepped off of a train of cars of appellant upon a platform extending over a ditch, and between a side and main track of the railroad. When he stepped upon the plank walk, it gave way with him, and threw him against the moving cars, resulting in the injury complained of. Appellant himself made no special examination of the cause of the giving way of the plank walk, but stated that it must have been rotten, or broken, or not nailed. One witness stated that the plank and sill, or sleeper, on which same rested, were not nailed, and that that was the cause of the giving way. Another witness testified that the platform did not exactly "cover the hole it was intended to cover," and that it was not much of a platform; that part of it rested on the ground, and part of it did not rest on anything. The bridge builder and inspector of appellant testifies that the platform was carefully constructed out of sound timber, well nailed down, and inspected daily, and that no defect was discoverable therein; that the giving way of the platform was caused by the breaking of one of the sills, a piece of 2x6 timber; that he did not make a "close examination, but it was a sound piece of timber--it had not been there very long." From a judgment awarding damages to appellee, this appeal is taken.

The allegation of negligence contained in the declaration is as follows: "Plaintiff stepped from the switchboard of defendant's engine to the plank walk of said trestle for the purpose of switching cars for the company at the point, and on account either of the rotten condition of the plank walk, or the fact that it was not nailed, which covered the trestle, same gave way," etc. "Therefore your plaintiff avers that on account of the willful, gross, and careless negligence of said company in failing to keep the trestle and ways and means and appliances thereto belonging in proper repair, and operating its trains at such rates of speed in said city," etc.

One of the instructions granted appellee, the granting of which is assigned as error, is as follows: "The court instructs the jury, for plaintiff, that the law in this case presumes that plaintiff's injury resulted from a negligent failure of defendant company to furnish a safe and secure platform at the place where plaintiff was hurt. The burden is upon defendant to rebut this presumption by evidence that it exercised reasonable care to build and maintain said platform in a safe condition for the use of its employes. The jury is the sole judge of the weight of evidence; and if the jury do not believe, from the evidence, that defendant exercised reasonable care to maintain said platform in a safe and secure condition, then they will find verdict for plaintiff."

This instruction is based upon the maxim, "res ipsa loquitur" (the thing speaks for itself). The rationale of this doctrine is that, in "some cases, the very nature of the accident, of itself and through the presumption it carries, supplies the requisite proof." It is applicable "where, under the circumstances shown the accident presumably would not have happened if due care had been exercised." Its essential import is that, on the facts proved, the plaintiff has made out a prima facie case, without direct proof of negligence." 2 Labatt, Master and Servant, § 834. There seems to be considerable conflict, and some confusion, among the decisions of various courts relative to the application of this maxim as between master...