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

• Decision Date: 28 May 1928
• Docket Number: 27135
• Citation: 117 So. 593,151 Miss. 240
• Parties: GULF, M. & N. R. R. CO. v. COLLINS. [*]
• Court: Mississippi Supreme Court

117 So. 593

151 Miss. 240

GULF, M. & N. R. R. CO. v. COLLINS. ^[*]

No. 27135

Supreme Court of Mississippi

May 28, 1928

Division A

Suggestion of Error Overruled July 18, 1928.

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

Action by Mrs. Ella Collins, administratrix of the estate of her husband, C. H. Collins, against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Judgment reversed.

Welch & Cooper, Roy P. Noble and J. N. Flowers for appellant.

We assert that the evidence leaves in grave doubt the circumstances of Mr. Collins' death and that the evidence leaves as a matter of pure conjecture the cause of Mr. Collins' death.

The whole theory of appellee is that Collins was on the ladder of the caboose and was jerked off when the brakes were applied. The sole support of this theory is found in the testimony of Griffin. Griffin did not see the accident. His testimony is but a recital of circumstances which the appellee will maintain created an issue of fact. Appellant respectfully submits that the testimony of Griffin does not show liability but leaves the matter one for the conjecture or guess of the jury. This we submit is not competent under the law to support the judgment.

This case is under the Federal Employer's Liability Act. The supreme court of the United States in Chicago, M. & St. P. R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041, said this: "The employer is liable for injury or death resulting in whole or in part from the negligence specified in the act; and proof of such negligence is essential to recovery. The kind or amount of evidence required to establish it is not subject to the control of the several states." And again it says: "As there is no direct evidence, it is necessary to determine whether the circumstances are sufficient to warrant a finding of that fact. Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not presumed."

The supreme court of Alabama, in Southern Railway Co. v. Dickson, 211 Ala. 481, 100 So. 665, was presented with a case under the Federal Employer's Liability Act. This case involved a lurch or jerk said to be sudden and violent and the court there discussed the elements and essentials of such a case. The court said: "In order to recover in this case it was necessary for plaintiff to show: 1. That he was thrown from his position on top of the car by a jerk or jar; 2. that this jerk or jar was sudden, extraordinary, and of unusual violence; 3. that it was caused by the engineer in the operation of the train; 4. that it was not a necessary incident of such operation, and 5, that at the time of its causation the engineer knew, or had reasonable grounds for believing, that the plaintiff then occupied such a position on one of the cars that such a movement would probably imperil his safety."

See Austin v. M. & O. R. R. Co., 134 Miss. 266, 99 So. 3. We submit too that the decision of the supreme court of the United States in the case of Gulf, Mobile & Northern Railroad Company v. Wells, decided January 3, 1928, and reported in the advance sheets of the opinion of the supreme court of the United States under date of January 15, 1928, is decisive of this case.

We have said nothing of the water at or near the track. Clearly there appears no connection in the evidence between this water and the injury. There is not one word in the record that shows any connection between the death of Mr. Collins and a defective track.

Chas. C. Evans and W. L. Pack, Jr., for appellee.

The only error assigned by able counsel for appellant is that the trial court erred in refusing appellant a peremptory instruction. As we understand the rule, this court, in passing upon that point, will treat the evidence as proving every material point of appellee's case which it either proves directly or by reasonable inference. Gulf & Ship Island R. R. Co. v. Hales, 140 Miss. 829, 105 So. 458, a case under the Federal Employers' Liability Act. Also St. Louis, etc., R. R. Co. v. Nixon & Phillips, 141 Miss. 677, 105 So. 478.

It is unfortunately true that no witness actually saw Collins fall, that there is no direct, positive, testimony as to the cause of his death. But in the light of Griffin's testimony, is it not reasonably certain how the accident occurred? We submit that when Griffin swears positively that just an instant before the jerk, Collins was at the end of the caboose, reaching for the ladder, that there then came a sudden and unusually violent jerk, and that immediately thereafter Collins' lifeless body was found beside the track, that was amply sufficient to take the case to the jury, especially when the other circumstances such as the defective track and the condition of the slack in the train are considered.

It must be remembered that direct, positive proof is not always necessary, but that a chain of circumstances may be, and in many cases must be, relied upon. Choctaw, etc., R. R. Co. v. McDade, 191 U.S. 64, 24 S.Ct. 24, 48 L.Ed. 96. In that case the employee, McDade, was a head brakeman and when last seen alive, he was at his post of duty on top of a furniture car, which was higher than the ordinary car, transmitting signals. A short distance from the point at which he was last seen there was a water tank with an iron spout which protruded out over the track. Shortly after the train passed the tank McDade was missed. His body was found six hundred and seventy-five feet beyond the tank, and there were bruises about his head and body which tended to show that he had been struck by the spout.

It was urged in that case that the case should have been taken from the jury because of the lack of testimony as to the manner in which the injury occurred. The supreme court rejected the contention. We submit that the proof in the case at bar does not leave the cause of Collins' death in conjecture and uncertainty. We insist that on the contrary, the evidence discloses a strong chain of circumstances which appellee was certainly entitled to have the jury pass upon. So. Ry. Co. v. Dickson (Ala.), 100 So. 665; Patton v. Texas, etc., R. R. Co., 179 U.S. 658, 45 L.Ed. 361; Richmond & D. R. R. Co. v. Powers, 149 U.S. 43, 37 L.Ed. 642.

Counsel for appellant cites the case of Chicago, etc., R. R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041, in support of his contention that a judgment will not be sustained where the evidence leaves the question of the defendant's negligence in the realm of speculation and conjecture. This is the correct rule, of course, but it can have no application to the case at bar for the reason that the evidence in this case does not leave the question of the defendant's negligence in the realm of conjecture. Texas & Pac. R. R. Co. v. Behymer, 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905.

Counsel for appellant cites the case of Austin v. Mobile & Ohio R. R. Co., 132 Miss. 266, 99 So. 3. We submit that the slightest examination of this case will show that it is not at all in point with the case at bar.

Another case relied on by counsel is Gulf, Mobile & Northern R. R. Co. v. Wells, reported in the United States supreme court Advance Sheets, L.Ed. under date of Jan. 16, 1928. While the facts in the Wells case are similar in some respects to those in the case at bar, a close examination of the court's opinion will show that there are some sharp differences which it seems to us, clearly distinguish the two cases. As stated by the court in its opinion, "there was no evidence that the engineer knew or should have known that Wells was not on the train, but was attempting to get on it after it had started and was in a situation in which a jerk of the train would be dangerous to him."

These are not the facts in the case at bar. In our case, the train had not stopped; Collins was on the caboose, exactly where his duties required him to be, and the engineer knew of his position or was certainly charged with knowledge of it, and knew further, or was charged with knowledge, that an unusual, violent jerking of the train would greatly imperil his safety.

Argued orally by Ellis B. Cooper, for appellant, and W. L. Pack, for appellee.

OPINION

COOK, J.

This suit was instituted by the appellee, Mrs. Ella Collins, administratrix of the estate of her husband, C. H. Collins, against the appellant, the Gulf, Mobile & Northern Railroad Company, for the death of her said husband, who was an employee of said railroad company, and from a verdict and judgment in favor of the appellee for the sum of seven thousand, six hundred eighty dollars this appeal was prosecuted.

The declaration was in two counts, both based upon the Federal Employers' Liability Act (45 USCA, sections 51-59; U.S Comp. St., sections 8657-8665). The first count, after making the averments necessary to bring the case within the provisions of the Federal Employers' Liability Act, alleged, in substance, that at the time of the accident, which resulted in his death, the decedent, C. H. Collins, was an employee of the appellant as head brakeman on one of its gravel trains which are used to distribute gravel along its line of railroad for the purpose of ballasting the track; that on and prior to the date of decedent's death, the track on a certain branch line of appellant's railroad near the village of Little Rock, Miss., was in a dangerous state of repair; that one mile east of said village the road passes through a deep cut, and there is at that point a sharp curve and steep grade, and the railroad was at that point soggy and soft; that water would seep out of the sides of said cut and collect and remain on the sides of and underneath the track, thereby rendering it very dangerous for...