Gulf & S. I. R. R. Co. v. Meyers

• Decision Date: 14 May 1917
• Docket Number: 19224
• Parties: GULF & S. I. R. R. CO. v. MEYERS
• Court: Mississippi Supreme Court

75 So. 244

114 Miss. 458

GULF & S. I. R. R. CO. v. MEYERS

No. 19224

Supreme Court of Mississippi

May 14, 1917

Division B

APPEAL from the circuit court of Forrest county, HON. P. B. JOHNSON Judge.

Suit by Mrs. William J. Meyers against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Mayes Wells, May & Sanders, for appellant.

We will consider the several assignments of error in the order assigned. First, the trial court erred in refusing the requested peremptory instruction to find for defendant. It may be proper for us to advert briefly to the general rule of the carrier's liability to its passengers. A common carrier is not an insurer of the safety of its passengers but is liable only for negligence. 6 Cyc. 590; Railroad Co v. Trotter, 61 Miss. 417; Railroad Co. v. Statham, 42 Miss. 607.

Common carriers are not compelled to so restrain the liberty of their passengers as that the latter can by no act of their own put themselves in unnecessary danger, and if the passenger puts himself in such danger and is thereby injured, the carrier is not liable. Bridges v. Railway Co., 86 Miss. 544; 4 Elliott on Railroads, 403.

The rule stated by Mr. Elliott, last above quoted, is substantially the same as the text in Cyc. to wit: "Jerks and jars necessarily incident to the operation of the train and not the result of negligence will not render the carrier liable for resulting injuries." 6 Cyc. 625, and numerous cases cited in note 13.

The court will bear in mind that this record does not present the ordinary case of injury to a passenger, in boarding the train or disembarking from the train, by the sudden stopping or starting or handling of the train, hence the multitude of decisions in such cases will not prove helpful in the determination of this case. The uncontroverted testimony in this record is that there was no accident to the train or car in which appellee was riding, but simply an accident to the appellee. It is further conceded that the train was moving at the usual and customary rate of speed between stations and rounding a curve in the track when the lurch, jerk or jar, producing the injury, occurred. It is also conceded that no other passenger on the train or in the car was injured, inconvenienced or discommoded by the operation of the train or car although there were other persons in the car which plaintiff was riding.

The positive testimony of appellant's witnesses that the railway track, at the time and place in question, was properly constructed, and in good, safe condition, is undisputed, as is also the testimony that appellant's vehicle was carefully and properly inspected a few hours before the accident to appellee and it was found to be in proper and safe condition in every respect, and as is also the testimony that appellant's engineer was a skilled, competent and cautious engineer.

We assume counsel for appellee will invoke the doctrine of res ipsa loquitur and section 1985, Mississippi Code 1906, and insist that by virtue thereof the trial court properly submitted the case to the jury, we recognize and appreciate the force of the res ipsa loquitur doctrine, and that when a person, suing a carrier of passengers for an injury shows that the injury happened to him, without fault or negligence on his part, in consequence of the breaking of the vehicle, roadway, or other appliances owned or controlled by the carrier in making the transit, he makes out a prima facie case for the recovery of damages.

But there is a well defined limitation on the application of this doctrine, stated in 5 R. C. L., page 83. Foley v. Boston & M. Railroad, -- -- Mass. -- --, 79 N.E. 765, 7 L. R. A. (N. S.) 1078; Weinschenk v. New York, N. H. & H. R. Co., 190 Mass. 250, 76 N.E. 662; Byron v. Lynn & B. R. Co., 177 Mass. 303, 58 N.E. 1015; Nelson v. Lehigh Valley Railroad Co., 50 N.Y.S. 63; Norfolk & W. Ry. Co. v. Rhodes, 63 S.E. 445; Cleary v. Blake, 12 A.D. 602, 605, 43 N.Y.S. 1115; Dougan v. Transportation Co., 56 N.Y. 1; Cleveland v. Steam Co., 68 N.Y. 306; Burke v. Witherbee, 98 N.Y. 563; Lafflin v. Railroad Co., 106 N.Y. 136, 12. N. E. 599; Loftus v. Ferry Co., 84 N.Y. 455.

In this case there is no direct proof of negligence, nor can negligence be reasonably presumed from the fact and circumstances disclosed by the record. It is a matter of common knowledge, as well as shown by the record, that trains or cars, in passing rapidly over curves in the road lurch, rock or swing and that this is unavoidable. Railroad tracks cannot always be straight. The movement of trains is rapid, and the inevitable result is that the natural laws of motion cause the car to rock or swing or lurch as it passes over curves. This cannot be prevented, and is one of the risks which a passenger assumes. See Baltimore etc. v. Cason, 72 Md. 377, 380, 381, 20 A. 113; Byron v. Lynn, 177 Miss. 303, 58 N.E. 1015; Hite v. Metropolitan etc. Co., 130 Mo. 132, 31 S.W. 262, 32 S.W. 33, 51 Am. St. Rep. 555; Burr v. Penn. R. Co., supra.

It is true that the plaintiff and one of his witnesses express the opinion that the rocking or lurching when the plaintiff was injured was unusual and extraordinary but they testify to no facts which show that it was unusual or extraordinary. Foley v. Boston, etc. R. Co., 193 Mass. 332, 79 N.E. 765, 766, 7 L. R. A. (N. S.) 1076. The mere fact that the plaintiff who did not have hold of anything, was thrown or fell in the way he described does not show that the movement of the train was unusual. No one was to blame for the injury so far as the record shows. It was simply one of those unfortunate accidents which sometimes happen, for which the law holds no one responsible.

"There being no evidence upon which to base the verdict, the trial court ought to have set it aside. The trial court erred in refusing defendant's thirteenth and last instruction, to wit: The court instructs the jury on behalf of defendant as a matter of law, that jerks and jars of railroad coaches are ordinary and necessary in the operation of railway trains, and for such injuries as may be received from jolts, jerks, or jars ordinarily and necessarily incident to the movement of trains, the carrier is not liable, because the risk of such injury so received is assumed by the passenger." (R. 41.)

Notwithstanding the authorities are all agreed that the passenger assumes the risk of injury received from jolts, jerks, or jars, ordinarily and necessarily incident to the movement of trains, the carrier is not liable, and although the authorities herein, above cited state that it is a matter of common knowledge that even in the exercise of the high degree of care required of steam railroads, jolts and lurches in the movement of their trains are necessary, the court deprived us of this vital principle in the refusal of the foregoing instruction.

"The trial court erred in giving the first instruction for the plaintiff, to wit:

"The court instructs the jury for the plaintiff that the railroad company owes to a passenger the duty of safe carriage and they are required by law to exercise the very highest degree of care for the safety of the passenger and if a passenger is injured by the carelessness of the railroad company then the railroad company becomes at once responsible for such injury."

Our complaint of this instruction is against the phrase advising the jury that carriers "are required by law to exercise the very highest degree of care for the safety of the passengers." This instruction is equivalent in strength to the following instruction condemned by the Alabama supreme court, in the case of Birmingham Ry., Light & Power Co. v. Barrett, 60 So. 262, paragraph 3, on page 264.

It is the duty of the street car company to exercise the highest degree of care known to human skill and foresight in regard to the carriage of its passengers, and the carrier is liable for the slightest degree of negligence. 6 Cyc. 591; 2 White's Personal Injuries on Railroads, p. 583; 2 Hutchinson on Carriers (3 Ed.), Sections 893-896; 2 Wood on Railway Law, section 301-313; 4 Elliott on Railroads (2 Ed.), 1585; B. R. L. & P. Co. v. Barrett, 58 So. 760.

"The trial court erred in giving the second instruction for the plaintiff, to wit: "Persons injured by a running train are presumed by law in absence of proof to the contrary, to have been injured by the negligence of the railroad company, and in order to recover for the same the party injured does not have to show what caused the injury or the details of how the injury was inflicted. The burden of proof is upon the railroad to show that such injury was not its fault and how it occurred and in the absence of such explanations by the railroad the law is that the party so injured must be entitled to a verdict in a suit for such injury."

This instruction is fatally erroneous in the following particulars: (a) It assumes the injury was caused by the running of the train. (b) It assumes the existence of negligence in the operation of the train and it further assumes that such negligence proximately caused the injury sued for. (c) It expressly advises the jury that the plaintiff is not required to show what caused the injury, in addition to stating that the details of how the injury was inflicted need not be shown by plaintiff to entitle plaintiff to recover. (d) It tells the jury in so many words, that the burden of proof is upon the railroad to show that such injury was not its fault, in addition to the burden of showing how the injury occurred, thereby shifting the burden of proof to the defendant to establish non-liability in addition to a full disclosure of all the facts and circumstances from which negligence...