Columbus & G. Ry. Co. v. Phillips
| Decision Date | 16 March 1931 |
| Docket Number | 29085 |
| Parties | COLUMBUS & G. RY. Co. v. PHILLIPS |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled April 13, 1931.
APPEAL from circuit court of Leflore county, HON. S. F. DAVIS Judge,
Action by Liza Phillips against the Columbus & Greenville Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Reversed and remanded.
Gardner, Odom & Gardner, of Greenwood, for appellant.
If the appellant as a carrier of passengers exercised the highest degree of care and diligence to discover and prevent a defect in its roadbed, track and train equipment and its agent in charge of such inspections and the operation of its train at the time were competent and skilled employees and performed their duties in this regard in a careful and prudent manner, then the presumption of negligence arising from our prima-facie statute must give way to the proof, and there is no liability on the part of the railway company because of the alleged injuries of the appellee. If the rule were otherwise, then carriers would be bound as insurers.
Central of Georgia Railroad Co. v. Robertson, 83 So. 102; 10 C. J. 953, 954; 5 Elliot on Railroads (3 Ed.), 2482; G. & S. I. R. R. Co. v. Odom, 133 Miss. 543, 98 So. 60; Columbus & Greenville R. R. Co. v. Cobbs, 156 Miss. 604, 126 So. 402; Allman v. G. & S. I. R. R. Co., 149 Miss. 489, 115 So. 494.
The presumption furnished by the statute is only a prima-facie presumption. It must yield to the facts as shown by the evidence.
Allman v. G. & S. I. R. R. Co., 149 Miss. 489, 115 So. 494; A. & V. Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674; A. G. S. Ry. Co. v. Daniell et al., 108 Miss. 358, 66 So. 730; I. C. R. R. Co. v. Gray, 118 Miss. 612; Hines, Director General of Railroads, v. McCullers, 121 Miss. 666, 83 So. 734; G. M. & N. R. R. Co. v. Hudson, 142 Miss. 542, 107 So. 368; G. M. & N. R. R. Co. v. Brown, 138 Miss. 39, 102 So. 855.
The granting of the sixth instruction to appellee constitutes flagrant and reversible error. It is contrary, misleading and calculated to confuse the jury in this. The first part of the instruction advised the jury that the appellant could exonerate itself from blame by showing that it exercised the highest degree of care, but the latter part told them that the utmost skill and the highest degree of care were not a defense unless such evidence showed clearly the cause of the derailment.
In the second place, this instruction is clearly a peremptory instruction for the appellee.
The next fault with this instruction is that it does not correctly state the law as to the burden of proof. The carrier is not required to show by a preponderance of the evidence that it exercised the highest degree of skill, care, etc. It must only show the facts and circumstances, and then the question of liability must be determined from the facts and not from the statute.
A. G. S. Ry. Co. v. Daniell, 108 Miss. 358, 66 So. 370; Hines, Director General, v. McCullers, 121 Miss. 666, 83 So. 734; Davis, Director General, v. Elzey, 126 Miss. 789, 88 So. 630; Davis, Director General, v. Temple, 129 Miss. 6, 91 So. 689; G. M. & N. Ry. Co. v. Brown, 138 Miss. 36, 102 So. 855; G. & S. I. R. Co. v. Odum, 133 Miss. 543, 98 So. 60; Columbus & Greenville Railway Company v. Cobbs, 156 Miss. 604, 126 So. 402.
O. L. Kimbrough, of Greenwood, for appellee.
It is for the jury to say whether the circumstances disclosed repelled the legal presumption of negligence arising where the passenger is injured by an overturned car.
Pa. Road Co. v. Weiss, 87 Pa. 447; Van v. Richmond, 259 Pa. 300, 102 A. 954; Cain v. Phil., 196 Pa. 502, 46 A. 893, 8 Am. Neg. Rep. 333; Shaughnessy v. Director General, 274 Pa. 413, 113 A. 390, 23 A. L. R. 1211.
Even if plaintiff offered no evidence to contradict that offered by defendant as to the cause of the accident, it remained, for the jury to say whether the explanation offered by defendant indicated the use of proper care in the maintenance of its road bed, and thus overcame the presumption of negligence.
Dowd v. Hines, 269 Pa. 182, 112 A. 528, Annotations, 23 A. L. R. 1212; Brown v. La. & M. River Co., 256 Mo. 522, 165 S.W. 1060.
A presumption of negligence in regard to the condition of the track, road bed, or machinery, or in regard to the operation of the train, arises where injuries are shown to have been received by a passenger in a derailment accident, and places on defendant the burden of accounting for the derailment and showing that it was without negligence on the part of its employees, or that the accident could not have been prevented by the exercise of the highest degree of care, compatible with the prosecution of its business. But proof that the derailment occurred from some unaccountable cause has been held insufficient to overcome the presumption.
10 C. J. 1034, par. 1451.
The court, in the first sentence of Instruction No. 6, merely informs the jury that the defense of the railroad as shown by its notice under the plea of the general issue and as developed by its proof on the trial is termed an affirmative defense. Such being true, it necessarily devolves on appellant to establish that defense. The court so states, and correctly so, this requirement to the jury, informing the jury that appellee is entitled to recover provided the jury believes from the evidence that plaintiff was a passenger, that the coach in which she was riding was derailed and that she was thereby injured, unless it is shown by a preponderance of the evidence that such derailment was caused by a latent defect which defendant by the exercise of the highest degree of care could not have discovered. The last sentence of the instruction informs the jury that if the evidence leaves it uncertain as to the cause of the derailment the defendant has not met the burden cast upon it to overcome the prima-facie presumption of negligence. This instruction was correct.
Thompson v. A. Coast Line, 113 S.C. 261, 102 S.E. 11; Hines v. Beard, 130 Va. 286, 107 S.E. 717; Reems v. N. O. G. N. R. Co., 52 So. 681; Wade v. Houston & S. R. R., 72 So. 220; Montgomery & E. Ry. v. Mallette, 9 So. 363.
The last sentence of this instruction informs the jury that if the evidence leaves it uncertain as to the cause of the derailment the defendant is entitled to a verdict.
The instruction should be taken in its entirety and should not be dissected and considered piece-meal. A tortured and strained construction has been given this instruction by reason of the use of the word "cause," in the last sentence thereof. The word was not employed to advise the jury that it devolved on appellant to show the specific "cause" of the derailment, but presented to the jury the question of whether there was a concealed or undiscoverable defect as distinguished from an established one.
The appellee, Liza Phillips, instituted this suit in the circuit court of Leflore county, seeking to recover damages for personal injuries alleged to have been sustained by her as a result of the derailment of a train of the appellant company, upon which she was a passenger. The declaration was in two counts, the first one being predicated upon the alleged unsafe and dangerous condition of the train equipment, and the second alleging that the derailment was the result of the unsafe, dangerous, and defective condition of the roadbed and track at the point where the derailment occurred. Upon the trial of the cause there was a verdict and judgment in favor of the appellee for the sum of two thousand five hundred dollars, from which this appeal was prosecuted.
The appellee offered evidence to show that she had paid the fare and was a passenger on the appellant's train at the time it was derailed; that the coach in which she was riding was thrown from the track and many of the seats therein demolished; that she was thrown against a seat in the coach and thereby injured. She also offered the evidence of several witnesses as to the extent of her injuries, and the state of her health before and after the derailment.
The appellant introduced all of its employees who were connected with the operation of the derailed train, who testified in detail as to their observations of conditions made immediately after the derailment. The testimony of these witnesses was to the effect that appearances indicated that the trucks of the tender of the engine first left the track about one hundred yards east of a trestle; that the engine came to a stop on or just after it passed off this trestle while the tender and baggage coach turned over on the south side of the track; that the coach in which the appellee was riding partially turned over on the same side of the track just as the front end of it reached the trestle: that the trestle was badly torn up and a number of rails were warped and twisted; that they examined the train and trucks of the tender and found no defect therein which could have caused the...
To continue reading
Request your trial