Columbus & G. Ry. Co. v. Cobbs

• Decision Date: 24 February 1930
• Docket Number: 28160
• Citation: 156 Miss. 604,126 So. 402
• Parties: COLUMBUS & G. RY. CO. v. COBBS
• Court: Mississippi Supreme Court

126 So. 402

156 Miss. 604

COLUMBUS & G. RY. CO. v. COBBS

No. 28160

Supreme Court of Mississippi

February 24, 1930

Division A

Suggestion of Error Overruled, Mar. 24, 1930.

APPEAL from circuit court of Sunflower county HON. S. F. DAVIS Judge.

Suit by Mrs. Bessie Cobbs, administratrix, against the Columbus & Greenville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Judgment reversed.

Gardner, Odom & Gardner, of Greenwood, for appellant.

Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved, and not themselves presumed.

U. S., 70 L.Ed. 1045; Elliott v. G. M. & N. R. R. Co., 145 Miss. 768; United States v. Rose, 23 L.Ed. 707, 25 L.Ed. 761, 70 L.Ed. 1041, 69 L.Ed. 419, 57 L.Ed. 1187; C. M. & St. P. R. R. Co., v. Coogan, 70 L.Ed. 1045.

It is the duty of the trial judge to direct a verdict for one of the parties when the testimony and all the inferences which the jury reasonably may draw therefrom would be insufficient to support a different finding.

Baltimore & O. R. R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; C. M. & N. R. R. Co. v. Jones, 137 Miss. 631.

Presumption may be rebutted by negative testimony.

Railroad Co. v. Hunnicutt, 98 Miss. 272, 295; Meridian Light & Railway Co. v. Dennis, 136 Miss. 100.

Osborn & Witty, of Greenwood (Frank Everett, of Indianola, of counsel), for appellee.

Under our Prima-Facie Statute, sec. 1985, Code 1906, unless the circumstances surrounding the parties at the time of the infliction of the injury be known, it cannot be ascertained what degree of care, precaution, and vigilance, if any, was due from the company to the party injured; consequently, it cannot be determined whether the company failed to observe the necessary degree of care, precaution, and vigilance.

Railroad Co. v. Cole, 101 Miss. 173, 57 So. 556; Railroad Co. v. Phillips, 64 Miss. 693, p. 704; Railroad Co. v. Landrum, 89 Miss. 399; Railroad Co. v. Brooks, 85 Miss. 269, 38 So. 40; Christian v. Railroad, 71 Miss. 237; S. C., 15 So. 71; Railroad Co. v. Brooks, 85 Miss. 269; Railroad Co. v. Thornhill, 63 So. 674; Railroad Co. v. Reed, 113 Miss. 545.

Appellant cites several Mississippi cases, which announce sound law, but which were rendered under facts entirely different from ours, and have no bearing on this case.

Argued orally by A. F. Gardner, for appellant, and by F. M. Witty, for appellee.

OPINION

McGowen, J.

This is a suit by the widow of Sam P. Cobbs to recover damages from the appellant for Cobbs' death. It is alleged that he was negligently and wantonly killed, in the town of Moorhead, by the operation of one of appellant's trains, being negligently run and operated on the railroad tracks of the appellant, and being propelled by steam, under circumstances unknown to the appellee.

Upon the close of the evidence the appellant asked for a peremptory instruction which was refused, and the case was submitted to the jury. The appellee rested her case upon the prima-facie negligence statute as shown by the instructions. There was a substantial verdict for the appellee, judgment rendered thereon, and the Columbus & Greenville Railway Company, the appellant, prosecutes this appeal therefrom.

The appellee offered evidence to the effect that two men found the body of the appellee's intestate. He was lying with his head toward the main line of the railroad and his hands toward the switch track; his head was on the cross-ties upon which the rails were laid; his feet were between the rails a short distance from the body; he was a few feet from the fool house, which the record shows was about three hundred or four hundred yards from the depot. The railroad runs east and west through Moorhead. Cobbs' legs were severed from his body. One witness testified that his legs were west of the body and there was blood along the track and a pool of blood where his body was lying. Another witness testified that his legs were east of his body a few feet, and that there was blood along the track. Cobb was suffering intensely, and those who approached him could not get much information from him. A doctor was called and stated that the accident had happened, in his judgment, about an hour before, or possibly longer. Those who gathered around the body could not find out the name, but his name was discovered by some papers. He then wanted to be carried to his home in Greenwood.

Upon the testimony of the man who discovered his body and the doctor who attended him at the place where the injury was thought to have occurred, the appellee rested her case.

The railroad showed that on this night the railroad company ran a train from Greenwood west to Indianola; it was a relief train drawn by two engines, or a "double-header" carrying four freight cars loaded with boats and lumber and provisions for the Red Cross; that on account of the overflow of the Mississippi river the train could go no further west than Indianola. The train reached Indianola about ten o'clock, stayed there about an hour and a half, left Indianola about eleven o'clock at night, and reached Moorhead about twelve o'clock. It was shown that on the trip from Greenwood to Indianola Cobbs was sitting alone in a Red Cross car; others joined him, and, on account of his talk, concluded that he was drinking, but no witness testified to the smell of any whisky. He was seen at Indianola, just before the train left there for its return trip, standing on the footboard of one of the engines. No fares had been charged the people who went over to Indianola on the train. It appears that the railroad permitted anyone to go who desired to do so, and some returned without paying fares. On the return trip from Indianola the engines which pulled the train did so backing, there being no turntable at Indianola, and according to all the evidence the engines left Moorhead on the trip east to Greenwood backing. There was a small light on the tender of each engine, and the headlights, of course, were turned westward as the train proceeded eastward.

All of the crew were introduced and all of them say that they did not see the deceased, nor was there anything unusual to attract their attention. Both engineers testified that they did not see him. It was shown that the train reached Moorhead about twelve o'clock and remained there about forty-five minutes; that there was some switching done by the train; and that the engineers and the firemen were on the lookout. It was also shown that, because of the want of a headlight and the cars attached to the engine in switching, they could not see very far, about forty or fifty feet one witness said. The train is shown to have left Moorhead, going east, about twelve forty-five o'clock a. m. or one o'clock. All of the employees on the train testified that they did not see the deceased on the return trip nor at Moorhead.

Davis a nightwatchman in the town of Moorhead, testified that, on the night Cobbs was injured, he was standing at the depot when this relief train, on its return trip, came in from Indianola "something after twelve o'clock;"...