Austin v. Mobile & O. R. Co

• Decision Date: 21 January 1924
• Docket Number: 23388
• Citation: 134 Miss. 226,99 So. 3
• Parties: AUSTIN ET AL. v. MOBILE & O. R. CO
• Court: Mississippi Supreme Court

99 So. 3

134 Miss. 226

AUSTIN ET AL. v. MOBILE & O. R. CO

No. 23388

Supreme Court of Mississippi

January 21, 1924

Division A

Suggestion of Error Overruled Feb. 18, 1924.

APPEAL from circuit court of Lowndes county, HON. THOS. B. CARROLL Judge.

Suit by W. A. Austin, administrator of the estate of W. C. Austin and others, against the Mobile & Ohio Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Judgment affirmed.

G. J. Rencher, for appellants.

A motion for a peremptory instruction is just the same as a demurrer to the evidence. Swan v. Liverpool, etc., Insurance Company, 52 Miss. 704, 5 How. 552, 23 Miss. 592, 43 Miss. 180. The motion admits all that the evidence proves or tends to prove; it admits all reasonable inferences that may be fairly drawn from the evidence and should never be given unless there "can be no room for doubt." Swan's case, supra; Mississippi Central Railway Company v. A. T. Mason, 51 Miss. 234; Myers et al. v. Lamb F. Lumber Co., 64 So. 727.

Where the court is doubtful or there is a conflict of inferences that different minds might reasonably draw from the evidence or the circumstances or the physical facts the matter should be submitted to the jury. Louisville & N. R. Railroad Company v. Garnet, 93 So. 241; Gulf & S. I. R. Co. v. Prince et al., 79 So. 62; 26 R. C. L., page 1067; Billingsly v. I. C. R. Co., 56 So. 790.

The peremptory instruction should not have been granted. Porter v. Neismith, 87 So. 5; Buil v. Clay, 90 So. 446; Jones v. Knotts, 70 So. 701; American Trading Company v. Ingram-Day Lumber Co., 69 So. 707; Ala., etc., Ry. Co. v. Daniel, 66 So. 730; Offett v. Barrett, 63 So. 333; Jefferson et al. v. Southern Ry. Co., 62 So. 643; Fuller v. I. C. Ry. Co., 56 So. 783; Thornhill's case, 63 So. 674; N. O. and N. E. Ry. Co., v. Brooks, 38 So. 40; Brooks v. Yazoo & M. V. Ry. Co., 72 So. 227; Western Ry. of Alabama v. May's, 72 So. 641; 5 Elliott on Railroads (3 Ed.), page 666, 69 N.E. 12, 37 U. S. (Law Ed.) 642; same 1107; 108 N.E. 962; 29 So. 602, I. C. Ry. Co. v. Turner, 14 So. 450.

The lower court in sustaining the motion for the peremptory instruction expressed doubt as to the correctness of its conclusion by saying: "I don't know whether I am right about this conclusion or not." Holmes v. Simon et al. 15 So. 70; Maxie et al. v. Laurel Hospital, 93 So. 817.

In the opinion the court said:--"In considering the propriety of a directed verdict the evidence in favor of the party against whom such a verdict is given must be treated as proving every material fact which it either proves directly, or by reasonable inference."

We insist that we had a right to go to the jury and granting of the peremptory instruction is fatal error.

J. M. Boone and Carl Fox, for appellee.

Our court, in the case of Railroad v. Downs, 109 Miss. 140, held that defendant would not be liable for injuries resulting from the ordinary hazards of the business. Crossett Lumber Co. v. Lamb, 84 So. 15. Under the evidence in this case it is perfectly clear that deceased was injured by an ordinary incident in switching cars which was just as obvious to deceased as it was to any other of the switching crew, and is covered by the principle laid down in the case of Y. and M. V. R. Co. v. Hollum, 119 Miss. 229.

The declaration alleges that it was the duty of deceased to look out for obstructions upon the track and that at the time this accident occurred he was in the discharge of his duty standing on a front car for that purpose, and it is perfectly natural that the deceased, standing upon the front car in broad daylight on the lookout for obstructions, as his duty required him to do, saw the cow as soon as she broke loose from the boy and broke towards the track, as soon as the conductor did, and that both he and the conductor naturally and involuntarily would give the stop signal for the application of emergency brakes; and the overwhelming, convincing testimony on this subject is that both the conductor and deceased gave this signal.

We contend that whether or not deceased gave the signal for the train to stop was not a material issue in the case for the reason that under the law deceased was not in such a position that it became necessary under the law for him to have special notice given to him that the train was going to be stopped to prevent a collision with the cow. One member of the crew is just as much obligated to look out for obstructions as any other member thereof. The conductor says he and the deceased were standing, "with our elbows right together talking about where they were going to put these cars." All the witnesses testified they were standing near together, and therefore each could see the cow as well as the other, and if the conductor gave the signal, the deceased, standing right by him, would necessarily see him give the signal.

The facts in the case of Spengler v. Williams, 6 So. 613, and the case of I. C. R. Co. v. Seamans, 31 So. 546, make those cases rest upon an entirely different principle of law. Appellant claims that in order for defendant to get the benefit of the assumption of risk it must be set up in a special plea. This is not necessary when defendant relies upon the risk ordinarily incident to the employment, nor is it necessary when relying upon the risk of extraordinary hazard known to the party injured, as decided in the Hollum and Downs cases, supra.

The court below in his opinion gives the reasons why he sustained the motion for a peremptory instruction on each phase of the case. He saw the witnesses, observed their demeanor, the circumstances under which they testified, their location with reference to the accident; and although he is averse to granting peremptory instructions, yet the evidence was so convincing in this case he felt compelled to do so; and we think that the reading of the opinion of Judge CARROLL in this record will convince this court that his action in granting a peremptory instruction was correct.

Argued orally by G. J. Rencher, for appellant, and J. M. Boone, for appellee.

OPINION

HOLDEN, J.

The appellant, W. A. Austin, administrator, brought this suit against the appellee, railroad company, for the death of W. C. Austin, alleged to have been caused by the negligence of the railroad company. At the conclusion of the testimony a peremptory instruction to find for the defendant was granted by the court; from which judgment this appeal is prosecuted.

The case, in substance, is this: The deceased Austin while engaged in his work as a switchman in the railroad yards at Columbus was riding on the front end of a flat car which was being pushed ahead of five other flat cars by the engine up the main line track intending to place the cars on a spur track, and, while the cars were being thus pushed ahead of the engine up the main line, a cow made an effort to cross the track in front of the train. The deceased and the conductor were standing close together in the front end of the front car at the time, and in order to prevent striking the cow the conductor signaled the engineer, who could see him from the engine window, to immediately stop the train, whereupon, in compliance with the signal to immediately stop, the engineer applied the brakes to his engine and suddenly stopped, causing the slack to run out of the six flat cars, and the sudden stop or jerk precipitated the deceased over the end of the front car, which ran over and killed him.

The evidence is conflicting in some respects regarding the position of the deceased and that of the conductor, but taking the testimony favorable to the appellant as being...