Feld v. Columbus & G. Ry. Co.

• Decision Date: 01 April 1929
• Docket Number: 27553
• Citation: 121 So. 272,153 Miss. 601
• Parties: FELD v. COLUMBUS & G. RY. CO. [*]
• Court: Mississippi Supreme Court

121 So. 272

153 Miss. 601

FELD v. COLUMBUS & G. RY. CO. ^[*]

No. 27553

Supreme Court of Mississippi

April 1, 1929

Division B

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

Action by Vera H. Feld against the Columbus & Greenville Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Wasson & Wasson, for appellant.

The theory of the appellant's case is that the loss of the goods in the hands of the appellee had been established by proof, and it then devolved upon the appellee to prove that the loss was caused by an act of God and that it was free from fault. Chicago, etc., Ry. Co. v. Moss, 60 Miss 1002; Chicago, etc., Ry. Co. v. Abels, 60 Miss 1017; Johnson v. Ry. Co., 69 Miss. 191; Newberger v. Ry. Co., 75 Miss. 307; Michaels v. N.Y. Cent. Ry. Co., 86 Am. Dec. 418; Transportation Co. v. Tiers (N. Y.), 64 Am. Dec. 396.

The appellee did not meet the burden upon it of showing that it was free from fault or negligence. On the contrary, appellee was negligent and its negligence was the cause of the damage complained of. The peremptory instruction requested by the appellant should have, therefore, been given and the lower court was in error in not giving it.

Before the train left the Greenville depot there was a panic among those who had gone to the depot for the purpose of going out of Greenville on a train of the appellee. This panic was caused by a report that the water was coming over the Greenville protection levee, or that it had broken. This train was sent out in the face of these undisputed conditions known to the train master, who had absolute control of the movement of the trains. Is this what a prudent man would have done under such conditions? The road master did the prudent thing when he sent the section foreman out to make exploration. The train master did the foolish thing when he sent the train out without waiting for a report from the section foreman, or without having made any investigation as to where the flood water was and what progress it was making. If there was reason for the road master to send the section foreman out to make an exploration and report back, there was reason to wait for a report from this section foreman. And it was nothing less than recklessness upon the part of the train master to send the train out of Greenville under the known conditions of danger. The train master knew as everybody knew, that the flood waters would overflow the tracks, and it was simply a question as to when it would occur and the effect of such an occurrence. Any reasonable investigation by the appellee as to where the water was and the progress it was making would have disclosed, almost to the minute, when the water Would reach the track.

Percy & Percy, for appellee.

A clear and simple theory of law was presented to the jury by the instructions of the court after the court had refused to grant to both the appellant and the appellee a peremptory instruction. The court instructed the jury for the defendant that the flood was an act of God and that if the flood was the proximate cause of the damage, the jury should find for the defendant. If the defendant's negligence contributed to the damage, the damage was not proximately caused by the act of God and the burden was on the railroad to show that its own negligence did not contribute to the damage. With this theory in mind the plaintiff asked for and the court gave an instruction, as follows, in part: "To constitute an act of God it must be the immediate, proximate and sole cause of the loss or damage, not concurred in by the negligence of the defendant; and the burden of proof is upon the defendant in this case to show from the weight of the evidence not only that the loss and damage to the seed in question was caused by a violent flood, but that the defendant and its employees were free from fault, which did not contribute to, or co-operate with the flood in causing loss or damage to the seed." This correctly stated the law, but to clarify it from the point of view of the defendant and in order to explain what the duty of the defendant was for the breach of which it would be held for negligence, the defendant asked for and was given two instructions, showing that the railroad's duty is to act as careful, reasonable men would act under the circumstances to protect the property entrusted to them and their actions are to be judged in the light of conditions then surrounding them and not in the light of what subsequent events showed could have been done, and their duty is to use, actively and energetically, all means at its command, or that might reasonably be expected of a company engaged in their business to possess, to meet the emergency. If these instructions, taken as a whole, pronounce the sound rule of law governing this case, there is no reversible error. Appellant quotes from four Mississippi cases: Chicago, etc., R. R. Co. v. Mississippi, 60 Miss. 1002; Johnson v. Railway Co., 69 Miss. 191; Newberger v. Ry. Co., 75 Miss. 307; and Chicago, etc., Ry. Co. v. Abels, 60 Miss. 1017. These cases show that in a suit on a special contract the burden of proof is on the common carrier to exculpate itself from negligence. Although this is not a case on a special contract, but is a case in tort, we can see how these authorities would be in point if the lower court had not required the appellee to prove not only that the damage was done by an act of God, but was done without the negligence of appellee. The lower court, in an instruction given for the plaintiff, propounded to the jury the principle laid down in those cases in these unequivocal words: "And the burden of proof is upon the defendant in this case to show from the weight of the evidence not only that the loss and damage to the seed in question was caused by a violent flood, but that the defendant and its employees were free from fault which did not contribute to or co-operate with the flood in causing loss or damage to the seed." In other words, the court imposed on the defendant the maximum burden which any court has ever imposed and which many courts on principle reject.

Only two other authorities are quoted in appellant's brief and neither of them can lend any comfort to the appellant, unless we entirely misconceive the meaning of those cases. Michaels v. N.Y. Cent. R. R., 86 Am. Dec. 415, is simply one of a large line of authorities holding that when goods are injured by an act of God and the act of God would not have befallen the goods except for the negligent delay of the carrier, the carrier is responsible. There is another long line of authorities holding that under such circumstances the delay is not the proximate cause of the injury and therefore the carrier is not liable. We do not know which line of authorities the Mississippi court would follow in a case where that point would be raised, but it is not raised here. If the court feels that it needs any authorities on the general duty of a carrier when goods in its possession have been injured by an act of God, or an act of God combined with the carrier's own negligence, we will refer them to the most extended collection of authorities we have been able to discover, to-wit: Seaboard Air Line v. Mullen, L. R. A. 1916D, 982; Gulf Coast Transp. Co. v. Howell, L. R. A. 1919D. 974; St. Louis R. R. Co. v. Dreyfus, L. R. A. 1915D 547; Armstrong v. Illinois Central R. R. Co., 29 L. R. A. (N. S.) 671.

If the principles of law were soundly laid down by the lower court in the instructions it gave, the appellant's only ground of complaint must be the refusal of the court to grant the peremptory instruction asked for by the plaintiff. Such an instruction should have been given only if this court believes no jury had a right to find on the facts introduced in this case that it was not the defendant's negligence, but the act of God which caused the damage. It was conceded that the flood waters from the Mississippi river destroyed the seed, and we take it there can be no dispute that flood waters from such a break are classed as an act of God. Still the flood waters would not be the proximate cause of the injury, if the carrier's own negligence contributed to the loss. If a jury had a right to say that under these circumstances the carrier acted as a reasonably careful person would have acted in such a time of crisis and disaster, this case cannot be reversed. There are three conceivable acts of negligence appellant may argue the carrier was guilty of in this case.

1. The mere acceptance of goods for transportation by the carrier after it knew the levee had broken. This was not suggested as an act of negligence either by appellant's trial attorney in the lower court or by counsel for appellant in his brief in this court. If this court lay down the rule that at the time of a threatened flood it was the duty of the carrier to refuse shipments of freight offered it, that rule would paralyze the most helpful arm of assistance stretched out to the public during these recurrent times of tribulation in the delta and would command carriers to shirk the very highest of their duties.

2. The fact that the appellee after receiving the shipment from the appellant tried to get it out of Greenville and the threatened area instead of holding it in Greenville wherein the knowledge of after events it would probably not have been injured. This point was not stressed in the trial of the case, but seems to be the point that appeals most to appellant here. If on the 21st of April reasonable men knew that Greenville would be safe for lives and chattels, the point would be well taken, but this is exactly what reasonable men did not know and what was in fact not true. People in masses fled from the town during that day and...