Gulf & S.I. Ry. Co. v. Bussy
| Decision Date | 26 October 1903 |
| Parties | GULF & SHIP ISLAND RAILROAD COMPANY v. CHARLES M. BUSSEY ET AL |
| Court | Mississippi Supreme Court |
FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.
Bussey and others, appellees, were plaintiffs in the court below the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The case was once before in the supreme court and is reported, Bussey v. Gulf & Ship Island Railroad Co., 79 Miss. 597.
The suit was an action for damages by the next of kin of Thomas B. Bussey, who was killed by being run over by the freight train of defendant on which he was the front brakeman. The declaration alleged that while the train was in motion, and when the deceased, in the orderly discharge of his duties walked out on the running board of the locomotive, a car of the train was derailed, causing a sudden and violent stop and jerk of the train, in consequence of which deceased was thrown off the train and run over and killed; that such derailment was caused by a loose and sunken joint between two rails, which defendant negligently suffered to be out of repair. Defendant pleaded the general issue, and the contributory negligence of deceased in going out on the running board of the locomotive, and thence to the pilot while the train was in motion, and in recklessly placing himself on the track in front of the train while it was in motion. The evidence for the plaintiffs shows that deceased was head brakeman on the freight train of the Laurel branch of defendant railroad, which intersects the main line at Saratoga. The trains on this branch usually come into Saratoga and switch off on a sidetrack. The branch line runs east and west, and five hundred feet east of the switch on the branch line there is a trestle one hundred and fifty-four feet long over a stream eight feet deep, and still further east another trestle one hundred and eighty-four feet long. Trains coming into the switch sometimes stop for the switch to be thrown, and sometimes simply slow up, and the head brakeman would get off and run ahead of the train and throw the switch before the train got to it. On the 18th day of March, 1901, the train on which deceased was brakeman came into Saratoga, and was running about three or four miles an hour when it reached the trestle farthest east. At the eastern end of this trestle there was a low joint in the road, and at this point the trucks of one of the freight cars, near the rear end of the train, was derailed, and the wheels ran along on the crossties for about sixty feet, when they were thrown crossways the track, and the train stopped. Deceased was found near the western end of the western trestle, having been run over and mutilated by the engine and several fright cars. The distance from where the body was found to the switch was four hundred and seventy-four feet and that the body was found where the engine would have been on the track when the derailment occurred. It was deceased's duty to get off the train and throw the switch, and that, the last seen of him, was when he got out of the cab window on the running board of the engine, ostensibly to perform this duty. The evidence does not disclose positively how deceased came to his death. The evidence for defendant was to the effect that there was no low or defective joint, as testified to by plaintiff's witness, but there was a fish bar under the joint, and that the roadbed had not been repaired, and trains had constantly passed over the place for a long time since the accident in perfect safety. The engineer testified that Bussey was reckless, and that he had remonstrated with him about getting on the pilot of the engine; that he last saw deceased going out of the fireman's window, towards the front of the engine; that some one gave a signal that the switch was open, and the train went right on in, the switch having been opened by Bussey or some one else. If Bussey opened the switch, the point at which his body was found shows that he came back towards the moving train.
Affirmed.
E. J. Bowers and McWillie & Thompson, for appellant.
The evidence showed that the deceased had left the cab of the locomotive presumably to throw a switch, and that at the time of the derailment the train was going only three or four miles an hour, there being a work train on the track ahead of it which necessitated very slow progress; while there were sixteen cars in the train, but one was derailed, and that this one, which was the fifth car from the caboose at the rear end, was not thrown off the roadbed where the accident happened, but simply off of the rails. The plaintiffs proved by one of their own witnesses that at the time of the derailment the train was going only three or four miles an hour, and it was shown by a witness for the defendant that the train was working no steam, was barely moving, and would have stopped anyhow in another car length. It further appears that the derailed car car ran along on the ties fifty-seven feet, just about a car length, when the truck seems to have turned lengthwise with the track and the train stopped. There was no reason why there should have been any jar or jerk at the forward end of the train, from the fact that one car near the rear end of the train ran along on the ties, and the train was evidently about to stop anyhow when the truck was displaced. It may well have followed that by the time the slack of the train was taken up from car to car the derailment of the car near the end would have caused no perceptible jar at the forward end of the train. Certainly the plaintiffs produced no evidence of any jar as far forward as the locomotive, and the defendant showed by the fireman, Reames, who was on the locomotive, that there was no perceptible jar at that point, and it did not attract the attention of the conductor, Brazil, who was also on the locomotive and did not notice when the derailment occurred.
This is an important matter in the consideration of this case, for it is claimed that the deceased was jarred from the locomotive where there was no jar, and also because unless the deceased was killed in consequence of some jar of the locomotive resulting from the derailment of the car, it is immaterial whether or not the defendant had negligently left out of repair the sunken joint which was alleged to be the cause of the derailment.
Furthermore, as will be hereinafter more fully considered, the plaintiffs did not show whether the deceased came to his death before the train stopped or after it again moved forward, or whether or not it resulted from his standing on the track in front of the approaching locomotive and the eleven forward cars which had been cut loose from the derailed car on the trestle, and the failure to repair the sunken joint, the only act negligence alleged, may have been entirly without import or relevancy.
The plaintiffs introduced three witnesses, one of whom is the brother of the deceased, Two of them testified that there was a sunken joint on the earth near the end of the trestle at the next crosstie but one to the end of the trestle; the third testified that there was no low or sunken joint within a few inches of the end of the trestle, as testified by the others; that the joint was not near the trestle, but was on the hard woodwork of the same, and had not sunk any and could not sink, and that the nearest joint on the ground was thirty feet distant. The testimony of this last mentioned witness of the plaintiffs is overwhelmingly confirmed by the evidence of the defendant.
But the undisputed evidence makes the pretense that there was a dangerous joint at the point in question absolutely farcical. It is shown by witnesses on both sides of the case that there has never been any work done at the joint in question; that it had remained ever since the accident exactly as it was at the time of the trial; that trains had been passing over it several times a day for nearly two years, and there had never been any sort of ill consequence from its use. The same crossties are still there with the marks on them, etc., and in all of the long period that had elapsed it had served every purpose of a safe track. Moreover, the plaintiffs' star witness, Harrell, admits that the joint was secured by a fishbar connection, and this sort of connection is shown to consist of a plate of steel from eighteen inches to four feet long, rolled so as to fit on the sides of the rails, which are end to end, and when fastened to the rails with bolts holds the ends of the rails in place and makes virtually a solid rail. Where this connection is employed there is practically no joint and no sinking of the kind described as taking place at low joints.
Moreover, it is quite evident that this derailment, which had no connection with the injury of the deceased, was caused by an occurrence which no care can guard against and in respect to which negligence was not charged, viz.: the breaking and falling of a brake shoe over which the wheels of the car passed.
The plaintiffs did not prove that the deceased fell or was thrown from the locomotive at all, either by a sudden jar or from any other cause, and the evidence strongly negatives the idea that he came to his death in that way. This failure of proof is very important, for the deceased being an employe the statutory presumption of negligence does not arise, although the injury resulted from the running of defendant's train. Short v. Railroad Co., 69 Miss. 848.
He certainly was not thrown, nor did he fall from the running board of the engine, as alleged in the declaration, for it is undisputed that his body was found in the middle of the track between the rails, the lower half...
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