Elliott v. G. M. & N. R. Co.

• Decision Date: 24 January 1927
• Docket Number: 26042
• Citation: 145 Miss. 768,111 So. 146
• Parties: ELLIOTT v. G. M. & N. R. CO. [*]
• Court: Mississippi Supreme Court

111 So. 146

145 Miss. 768

ELLIOTT v. G. M. & N. R. CO. ^[*]

No. 26042

Supreme Court of Mississippi

January 24, 1927

Division A

APPEAL from circuit court of Jones county, HON. R. S. HALL, Judge.

Action by Nellie B. Elliott, administratrix, against the G. M. & N Railroad Company. From a judgment on a verdict directed for defendant, plaintiff appeals. Affirmed.

Affirmed.

Currie & Currie, Z. A. Brantley and J. W. Cassidy for appellant.

I. The court erred in granting a peremptory instruction. How can a reasonable mind, a fair mind, escape the firm conviction, from the evidence, that this dead man's foot was caught under the end of that rotten cross-tie, and that he was thereby thrown under the train where he was injured and killed? It was a dark, cold, rainy night. Rain will efface or dim old tracks on the ground in such manner that a new or fresh track may be discerned at once. It was a fresh track made on the wet ground, in the rain, under the end of this cross-tie. Elliott's dead body was found right at, or very near, this track, under the end of his cross-tie.

The very facts and circumstances surrounding this shoe track under the end of this cross-tie, the position of the dead man's body on the ground, the direction in which the train was moving, the manner in which the end of this rotten cross-tie had been disturbed, all show, beyond a doubt, that the shoe track underneath the end of this cross-tie was that of the deceased.

The railroad company did not put on a single witness. It made no effort to explain away these facts. It did not otherwise account for the death of the deceased. Surely, it would not be necessary to cite authority in this case to the effect that the railroad company was guilty of negligence in maintaining an interstate railroad track with such a rotten, defective, and dangerous cross-tie in it, as that described in the evidence in this case.

The railroad contended, and we presume that the lower court granted a peremptory instruction upon that theory, that the deceased assumed the risk of being injured and killed in the manner in which he was injured and killed by this rotten, defective, and dangerous cross-tie. Was not the assumption of the risk, under the facts and circumstances of this case, a question for the determination of the jury? Unless the court was authorized to hold as a matter of law that the deceased assumed the risk, the peremptory instruction was improperly granted, and the case ought to be reversed.

It cannot be maintained that the deceased assumed the risk, as a matter of law. Chicago & Northwestern R. R. Co. v. Swett, 45 Ill. 197, 92 Am. Dec. 206; Buzzell v. Laconia Mfg. Co., 48 Me. 113; St. Louis, etc., R. R. Co. v. Irwin, 37 Kan. 701, 1 A. S. R. 266.

The true principle of law applicable to this case is announced in Chicago & Northwestern R. R. Co. v. Swett, 45 Ill. 197, 92 Am. Dec. 211. The peril to Elliott, the deceased, consisted in the rotten, defective, and dangerous condition of the cross-tie, the peril from which he lost his life; it was a risk or peril created by the negligence of his master, the railroad company; a risk or peril which he did not, under any law, assume. St. Louis, etc., R. R. Co. v. Touhey, 67 Ark. 209, 77 A. S. R. 109. The principle of law announced in Finkbine Lbr. Co. v. Cunningham, 57 So. 916, also applies here. See, too, Chicago, etc., R. R. Co. v. Kneirim, 152 Ill. 458, 43 A. S. R. 259; Union Pac. R. R. Co. v. Nora O'Brien, 40 L.Ed. 766; Roberts on Injuries, Interstate Employees, Federal Employers' Liability, pages 195-6.

II. Whether or not appellant assumed the risk was a question for the jury, and not for the court. Baltimore & Ohio R. R. Co. v. Taylor, 186 F. 828; Sioux City & Pac. R. R. Co., plaintiffs in error, v. Harry G. Stout, 21 L.Ed. 745.

III. The assumption of risk is an affirmative defense, and the burden was upon the appellee to prove that Elliott, the deceased, assumed the risk. Union Pac. R. R. Co. v. Nora O'Brien, 40 L.Ed. 766.

The railroad company, the appellee, was not entitled to a peremptory instruction, under the evidence in this case, on the ground that there was no proof of any negligence against it. The fact was established beyond dispute and beyond doubt that its track was defective and dangerous; that the cross-ties in it were rotten; and that the deceased lost his life because of the rotten, defective and dangerous condition of the cross-tie in it.

Welch & Cooper and Roy P. Noble, for appellee.

Deceased was found dead with his shoulder cut and his neck broken. The wheels disclosed blood signs. A rotten cross-tie was found in the track. An unidentified toe print was found in a place much frequented. When it was made and by whom does not appear. According to one witness, there was the sign of a rolling body. But there were no knee prints or anything indicating a stumbling or falling body. According to another witness, there were signs north of the cross-tie. According to one witness, the lantern of deceased, with its light out, was in the middle of the track opposite the cross-tie in question. According to another, the lantern was fifteen feet from the tie. But according to this last witness, the hat of deceased was in the middle of the track from twelve to fifteen feet north of the crosstie.

If deceased had tripped over the rotten tie and stumbled, he would have fallen to the south and the lantern would have been his length, or less, south of the tie. But no effort of the finite mind can reconcile a tripping and stumbling with the undisputed position of the lantern.

Many considerations led the court below to hold that the negligence charged had not been proved. We submit that the court was correct. Let us test this case by the applicable law. Counsel for appellant asks why the proved facts do not call for an explanation. By agreement this cause presents a case determinable by the principles of the federal Employer's Liability Act. Under that act the prima-facie statute of Mississippi does not apply. R. R. Co. v. Harris, 247 U.S. 367, 62 L.Ed. 1167; and R. R. Co. v. Scarlet, 249 U.S. 528, 63 L.Ed. 752.

Proof of negligence is essential to recovery. This is fundamental. And furthermore, it is so fundamental that citation of authority is unnecessary that the negligence charged must have brought about the injury. Chicago, etc., R. R. Co. v. Coogan, Admx., 46 S.Ct. 564. This case is much stronger in its circumstances than the one at bar. As the court said there, "The record leaves the case in the realm of speculation and conjecture. That is not enough."

Appellant devotes considerable argument to the assumption of risk pleaded. The court below did not consider this. It does not appear that there was any impairment in the safety of operation. The rotten tie, if it caused the injury, was no more dangerous than the sound ties which protruded from the ground. Nelson v. So. R. R. Co., 246 U.S. 253, 62 L.Ed. 699.

Argued orally by N. T. Currie, for appellant, and Ellis B. Cooper, for appellee.

OPINION

MCGOWEN, J.

The declaration in this case set up as a basis for the action on the part of Mrs. Nellie R. Elliott, as administrator of the estate of her husband, Wright R. Elliott, deceased, against the G. M. & N. R. R. Co., that the decedent Wright A. Elliott, came to his death while in the performance of his duties as engine foreman; that by the gross negligence of the defendant complainant's intestate was killed, because defendant negligently allowed a crosstie in its track to become rotten and defective and dangerous in a place in its yard where the deceased was required to work on said night; that the end of the crosstie was caused to project upward, leaving such a broad space between the ground and the cross-tie that the plaintiff's intestate, in disembarking from a box car in the performance of his duties in the nighttime, placed his foot in said space, stumbled, fell and lost his life.

On the proof the court below granted the railroad company a peremptory instruction. The plaintiff relied wholly upon circumstantial evidence as to the details of the accident. Elliott lost his life on a dark rainy night in December, when no one was present, so far as this record discloses, and when no one had seen plaintiff's intestate within two hundred yards of the place at which he was found dead. Mr. Elliott's neck was broken. His body was found alongside the house track, in the city of Laurel, lying parallel with the rails of the railroad, sometime after one o'clock, and before two o'clock, a. m. The wheels of the train had evidently run over his shoulder and arm. There were bruises on his side. Cinders had been "drug in his face." According to the proof in the case and the statement of counsel, he was a healthy man, and a faithful employee of the railroad company.

Mr. W B. Poltry, an employee of the railroad company, upon being informed by Mr. Richardson that Mr. Elliott had been killed, went to the place where the accident had occurred, and found Elliott's body lying partly on the inside of the track, his feet being on the outside of the track, on the east side thereof. The tracks in that vicinity ran about north and south. The head and shoulder of Elliott were on the inside of the rail; his feet and body off the other way. Poltry took a flashlight and looked around. He found a rotten crosstie, a piece of which was sticking up from the rail right at the end of the crosstie. He also found a man's toe track at the end of the crosstie. This toe track was under the piece of the cross-tie that was sticking up. The under part of the tie had decayed, and left the top, which was sound. The first sign he saw of any accident was at the crosstie. The body of the dead man was found ten or twelve feet south. The only...