Gulf, M. & N. R. Co. v. Kelly

• Citation: 171 So. 883,178 Miss. 531
• Decision Date: 18 January 1937
• Docket Number: 32473
• Parties: GULF, M. & N. R. CO. v. KELLY
• Court: United States State Supreme Court of Mississippi

171 So. 883

178 Miss. 531

GULF, M. & N. R. CO. v. KELLY

No. 32473

Supreme Court of Mississippi

January 18, 1937

Division B

Suggestion Of Error Overruled March 1, 1937.

APPEAL from the circuit court of Lauderdale county HON. A. G. BUSBY Judge.

Suit by L. C. Kelly against the Gulf, Mobile & Northern Railroad Company. From a judgment in favor of the plaintiff, the defendant appeals. Affirmed.

Affirmed.

Welch & Cooper, of Laurel, and J. V. Gipson and Thos. L. Bailey, both of Meridian, for appellant.

It is the duty of the plaintiff in a suit against the master to prove that there was a defect in the tool and that the master had either actual or constructive notice thereof. In proving constructive notice it is necessary to prove that the defect was one which could have been discovered by a competent person in making a reasonably careful inspection and that the defect had been in existence for a sufficient length of time to have afforded the master a reasonable opportunity to make such inspection.

Gulfport Creosoting Co. v. White, 157 So. 86, 171 Miss. 127.

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

Chicago, Milwaukee & St. Paul R. R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041; Elliot v. G. M. & N. R. Co., 111 So. 146, 145 Miss. 768.

Proof of a possibility or proof that leaves the matter in the realm of speculation and conjecture is not enough to sustain a verdict.

Columbus & Greenville R. R. Co. v. Coleman, 160 So. 277, 172 Miss. 514; G. M. & N. R. R. Co. v. Wells, 275 U.S. 455, 72 L.Ed. 370; Patton. v. Texas & Pacific R. R. Co., 179 U.S. 658, 45 L.Ed. 361.

Where an acetylene torch is tested for leakage and found to have no leaks and tested by use in cutting and found to be satisfactory, and then placed in a locker under lock and key for approximately eight months and then taken out and used without accident or injury for a period of not less than ten hours, there is no proof of any defect in such torch even though sixteen and one-half hours after the beginning of the use of the torch there is an explosion which injures the hand of the operator but not the torch. And this is true even though experts say that the torch would be unsafe after laying up for that period of time for the reason that the stem might corrode and might displace the packing and cause a leak.

And this is further true in view of the above circumstances even though an expert might say that the torch might work properly and safely at first and yet might develop the leakage later.

Assuming that the explosion was caused by a leak in the high-pressure valve, still there is no liability where the torch when first used for the work appeared in every way to be efficient and sound and gave no indication whatsoever of any defect.

Where the defect developed on the work there was no sufficient time to make an examination or inspection and in the absense of proof of actual knowledge on the part of the master there is no liability.

Where two expert witnesses swear that the contact of oxygen and grease will cause an explosion, it is reversible error for the court to deny the defendant the right to have an expert demonstrate that oxygen and grease when in contact with one another will not cause an explosion. And this is especially true where the demonstration will be offered at a point fifty feet from the court house and consume about twenty minutes and the same type of oxygen at the same pressure with similar hoses and tanks and the identical torch will be used.

A demonstration or experiment in the presence of the jury is proper. And this especially true where the demonstration is as to the operation of a natural law.

Brown v. State, 169 So. 837; Dillard v. State, 58 Miss. 368; Stockwell v. C. C. & D. R. R. Co., 43 Iowa 470; Pennsylvania Coal Co. v. Kelly, 156 Ill. 9; Leonard v. Southern Pacific R. R. Co., 21 Ore. 555; National Cash Register Co. v. Blumenthal, 85 Mich. 464; Owens v. Missouri Pacific R. R. Co., 38 F. 571; Jones v. Royster Co., 6 Ga.App. 506, 65 S.E. 361; 2 Wigmore on Evidence (1 Ed.), page 1358, sections 1160 and 1162; 64 C. J., pages 85 and 86.

The power of a court to permit experiments or a view is inherent and not dependent upon a statute granting such power.

2 Wigmore on Evidence (1 Ed.), sec. 1163; 64 C. J., pages 85 and 86.

Assuming that the court is vested with discretion as to the allowance of an experiment before the jury, still where the record discloses that the objection was made upon other grounds which would not call into play the exercise of the discretion, it cannot be contended in this court that the act was discretionary and hence not error.

But even if it be held that the court is vested with discretion and that his act in overruling the motion was an exercise of his discretion, still there is an abuse of that discretion where the jury would have to be taken only fifty feet from the court house and not more than twenty minutes of time would be consumed and all appliances would be duplicated.

Reily & Parker, of Meridian, and W. A. Strong, Jr., of Louisville, for appellee.

It is our opinion that the surrounding facts and circumstances are established with sufficient certainty and directness to lead only to the conclusion that the appellant was guilty of negligence and that the appellee was injured as a proximate result thereof, and that no other conclusion could have reasonably been reached. But the appellee was not required to exclude every other reasonable conclusion, for the appellee was entitled to a verdict if the testimony offered was sufficient to make it reasonably appear that the appellant was guilty of negligence proximately causing the appellee's injury and that the jury accepted such reasonable conclusion and proof.

M. & O. R. R. Co. v. Cox, 121 So. 292; Collins Baking Co. v. Wicker, 142 So. 8; G. M. & N. R. R. Co. v. Brown, 102 So. 855; E. L. Bruce v. Brogan, 166 So. 350; Turner v. Southern Power Co. , 69 S.E. 848; Indianapolis Light & Heat Co. v. Dolby, 92 N.E. 739; Schoen v. Arkansas Valley Gas Co., 263 P. 1079; Atlantic Coast Line R. R. Co. v. Newton, 118 Va. 222, 12 N. C. C. A. 328; J. C. Penney Co. v. Evans, 160 So. 770; M. & O. R. R. Co. v. Brewer, 107 So. 199; Ness Creameries v. Barthes, 155 So. 222; City of Greenwood v. Penticost, 114 So. 259; A. & V. R. R. Co. v. Fountain, 111 So. 153.

The appellant contends that the trial court erred in not permitting a demonstration to be made by appellant's witnesses in the presence of the court and jury, but ouside of the court room. The relative value of demonstration evidence is not a new question before the courts. The matter of viewing the scene is similar to the matter of demonstration, but less objectionable. And the matter of viewing the scene as crystalized into the enactment of a statute covering this question which places the same within the discretion of the trial court.

National Box Co. v. Bradley, 157 So. 91; Cotton Mill Products Co. v. Oliver, 121 So. 111; 10 R. C. L. 1000; Langdon-Creasy Co. v. Rouse, 139 Ky. 647, 72 S.W. 1113, Ann. Cas. 1912B 292; Thornhill v. Carpenter-Morten Co., 220 Mass. 593, 108 N.E. 474; Mueller Bros. Art. & Mfg. Co. v. Fulton Street Wholesale Market Co., 181 Ill.App. 685; Adskim v. Oregon-Washington R. & Nav. Co., 134 Or. 574, 294 P. 605; Ohio Power Co. v. Fittro, 36 Ohio App. 186, 173 N.E. 33; Martin v. State, 68 Fla. 18, 66 So. 139; Ohio County Drug Co. v. Howard, 256 S.W. 705; 22 C. J. 790, sec. 899.

Argued orally by Ellis B. Cooper, for appellant, and by Marion W. Reily, for appellee.

OPINION

Ethridge, P. J.

The appellee was plaintiff in the court below, and brought suit against the appellant for injuries received by appellee on December 4, 1934, while in the service of appellant. The injuries occurred while appellee was using an acetylene torch in cutting metal while removing a wreck on the track which had occurred some distance north of Louisville, Miss. The torch was alleged to be defective, in that a nut therein was improperly packed, permitting oxygen to leak from the tank, which, coming in contact with the greasy gloves worn by the appellee, caused an explosion by which he was injured. His hand, from his wrist down, was burned severely, his teeth loosened, and his hearing was impaired.

It appears that eight months prior to the injury in question, the appellee was using this acetylene torch in another wreck, found it to be defective, and turned it over to the proper person for repairs, notifying him of its defective condition; the company having another servant whose duty it was to inspect and repair such torches. This servant in repairing this particular torch, packed it with dry asbestos, not using glycerine, as was the custom, and it was alleged that the torch was submerged in water, a process by which it is claimed that, if there is escaping oxygen, bubbles will form. After being so repaired, this torch was placed in a locker on the caboose which had been set aside for wrecker service, and it appears not to have been inspected thereafter, so far as the proof shows, between that date and the date of appellee's injuries.

There was testimony to the effect that the proper way to pack a nut was to saturate asbestos with glycerine; that it was used by manufacturers in the making of such torches; and that it was much safer when so packed, this being generally recognized. There was testimony to the effect, also, that it was proper to inspect such torches at least once or twice a month to see whether there were leaks, and that when oxygen came in contact with grease there were liable to be explosions. It was also shown in the testimony that, in working around engines and in removing wrecks from the track,...