Easley v. Alabama Great Southern Railroad Company

• Decision Date: 18 October 1909
• Citation: 96 Miss. 396,50 So. 491
• Court: Mississippi Supreme Court
• Parties: THOMAS EASLEY v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY

50 So. 491

96 Miss. 396

THOMAS EASLEY v. ALABAMA GREAT SOUTHERN RAILROAD COMPANY

Supreme Court of Mississippi

October 18, 1909

October 1909

FROM the circuit court of Lauderdale county, JOHN L. BUCKLEY Judge.

Easley appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court. The plaintiff was a passenger on defendant's railroad; the other facts are sufficiently shown by the opinion of the court.

Reversed and remanded.

F. V Brahan, for appellant.

The proof clearly established beyond question, that the plaintiff was injured while a passenger in the defendant's coach, being struck while the train was running by the "mail crane or some other object."

There is not a particle of testimony in this case to support the special plea of the defendant, viz.: that the plaintiff wrongfully and negligently, placed his arm outside of the said coach and through the window thereof, and permitted it so to remain at the time and when said train was running rapidly and to such an extent and in such a way as to bring his said arm in contact with the objects outside of the coach of said train in which plaintiff was riding.

Notwithstanding this fact the court in the first instruction given to the defendant stated that if they believed from the evidence that the plaintiff's injuries were caused by his leaning out of the car window so far as to be struck by an object twelve inches from the coach, then he was guilty of contributory negligence and could not recover.

It has been repeatedly held that it is reversible error to give an instruction to the jury based on assumed facts which have not been proven.

The truth of this case is, the railroad company does not know how or what caused the injury to the plaintiff.

In respect to the "false issues" presented by the pleadings and the instructions for the defendant, and the fact, that the defendant company offered no evidence of an affirmative or positive character, in denial of the plaintiff's right to recover, the instant case is very similar to the case of Fairfield v. Louisville, etc., R. Co., 94 Miss. 887, 48 So. 513.

Bozeman & Fewell, for appellee.

In this case there is no proof that the injury was inflicted by the running of the cars. It first devolves upon the plaintiff to show this before he is entitled to the benefit of the prima facie statute.

Counsel for the appellant contended that it devolved upon the railroad company to exonerate itself from the blame.

We say that the defendant has done this conclusively. The only negligence charged was that the mail crane was erected too close to the track and that plaintiff was struck by it.

Defendant proved by three witnesses that the mail crane was not dangerously close to the track, being over six feet from the rail and was so constructed that the arms when horizontally extended would be one above the window and one below the window, and from twelve to fourteen inches from the side of the car, and that when the arms moved they moved away from the window and not across it; the upper arm going up and the lower arm going down both to a vertical position on the upright.

Defendant further proved that there was no other structure near the place of accident close enough to the track to strike a passenger, and further that the train and coach were in good condition and properly operated and that there was no accident to or rough handling of the...