Gulfport & Mississippi Coast Traction Co. v. Hicks

• Decision Date: 10 December 1917
• Docket Number: 19760
• Parties: GULFPORT & MISSISSIPPI COAST TRACTION CO. v. HICKS
• Court: Mississippi Supreme Court

76 So. 873

116 Miss. 164

GULFPORT & MISSISSIPPI COAST TRACTION CO. v. HICKS

No. 19760

Supreme Court of Mississippi

December 10, 1917

Division B

APPEAL from the circuit court of Harrison county, HON. J. H NEVILLE, Judge.

Suit by D. A. Hicks against the Gulfport & Mississippi Coast Traction Company. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

White &amp Ford, for appellant.

Counsel for appellee practically abandons the principle of res ipsa loquitur, upon which he depended altogether in the court below, as the ground upon which he asked a verdict from the jury; and he pitches his case in this court upon our prima-facie statute and cites three cases from the supreme court of Georgia to the effect that under the the Georgia statute the term "running" was not restricted to actual motion, but applied to the general operation of the train, or cars or machinery.

We will undertake to show that the cases cited from the Georgia courts do not uphold the contention of appellee.

The Georgia statute provides: "A railroad company shall be liable for any damage done to persons, stock, or other property by the running of the locomotives or cars or other machinery of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company." (Italic ours.) Ga. Ry. Co. v. Reeves, 51 S.E. 610.

Under section 1645, Code of 1906, as amended by Acts of 1912, chapter 215, a prima-facie presumption of negligence arises in actions against railroads, corporations, companies, partnerships, and individuals "using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power and running on tracks for damage done to persons, or property, inflicted by the running of the engines, locomotives or cars," etc.

The court will note the distinction between the broad scope of the Georgia statute, which raises the presumption in cases arising from the running of cars, or machinery, stationary or otherwise, or from any act of an employee, and which puts the burden of proof in all cases upon the railroad, and our statute which restricts its application to cars, engines and locomotives running on tracks.

We can readily see how the courts of Georgia would apply the broad statute of that state to cases where the injury is not caused by the motion of the cars, but such a construction of that statute would not be a precedent for a like construction of section 1645 of the Mississippi Code, or chapter 215 of Acts of 1912.

The Georgia court in one of the cases cited by counsel, being a case where plaintiff was injured by the bursting under the wheels of a train in operation, of two torpedoes on the track, where it was doubtful whether the torpedoes were placed on the tracks by employees of the railroad or by outsiders, held that the statute did not apply until it was shown that the torpedoes were thus placed on the tracks by the employees of the defendant; holding that it was not caused by negligence in the operation of the train, but that in order to hold the defendant liable, it must be shown that the injury was caused by the act of an employee of the company before the statutory presumption of negligence would arise. Smith v. A. C. L. Ry., 62 S.E. 1021, (cited by appellee).

In another of the cases cited by learned counsel for appellee the statute is applied where a passenger was hurt while being transferred from one car to another, through the negligence of the railway company, in putting out the lights and giving the car a sudden jerk, the courts holding that a jerk of the car while a passenger is alighting is a part of the running of the car. Georgia Ry. & Electric Company v. Reeves, 51 S.E. 612.

Seaboard Air Line v. Bishop, 63 S.E. 1103, cited in the brief of appellee, was a case where a conductor on a freight train in passing over a flat car loaded with freight in the performance of his duty as conductor, and while the train was running, stepped on a nail sticking between some material on the flat car and stuck the nail in his foot. By a divided court it was held that the injury was inflicted by the actual running of the train.

The supreme court of Florida, in applying a statute identical with the Georgia statute, limits its application to cases strictly within its terms. A. C. L. Co. v. McCormack (Fla.), 52 So. 712; F. E. C. Ry. Co. v. Johnson (Fla.), 70 So. 397.

The Arkansas supreme court held that in a statute similar to ours the term "running" should be applied in its narrow and restricted sense of causing trains to be moved or propelled. St. Louis & Santa Fe Ry. Co. v. Cooksey, 69 S.W. 259, 70 Ark. 418.

But if we use the term "running" interchangeably with "operating," and give it the broadest possible meaning still the car in the instant case, which was standing motionless, could not with reference to this accident have been said to be operating, so as to charge an injury caused by a stroke of lightning to the operating of the car, until it is shown that those in control of it did some duty, that at least contributed to appellee's injury.

There could be no statutory presumption independent of the doctrine res ipsa loquitur, and if this doctrine applies it furnished the presumption of negligence itself, and, therefore there is no place for the statutory presumption.

No matter whether the term "running" is construed to include the term "operating" in its broadest sense, or is restricted to the narrowest meaning of the word used by the lawmakers, the all sufficient answer to appellee's contention is that it is nowhere shown that appellant caused, or contributed in any way to appellee's alleged injury, either by "running" or "operating" its cars or otherwise. So there is no act or omission of appellant to support the statutory presumption.

Mize & Mize and G. E. Williams, for appellee.

We will now notice appellant's contentions as to its grounds for complaint in the order in which they come. First, appellant says that it was entitled to peremptory instructions; that the presumption does not apply in a case of this kind. There are two answers to this: First, the prima-facie statute does apply notwithstanding that the car had technically stopped. The phrase, "running" of the cars, does not have reference alone to the actual motion of the cars but to the operation of the car.

A Georgia case lays down the following: The word "running" as used in the Civil Code of 1895, by section 2321, creating a presumption of negligence against a railroad company where damage is done by the running of its locomotives, cars or machinery, does not refer so much to the actual motion as it does to the general operation of its cars or machinery. Smith v. A. C. L., 62 S.E. 1020, 5 Ga.App. 219.

If a car containing passengers is stopped while in transit and the passengers are directed by the conductor to change to another car which is on a track parallel to the first, and if, while they are so doing, the employees of the company put out the lights of the first car and caused it to jerk suddenly, resulting, in injury to a passenger who is in the act of making the change, this would be "injury resulting from the running of the cars." Ga. Ry. & Elec. Co. v. Reeves, 51 S.E. 610, 123 Ga. 697.

This is practically the instant case. Here appellee was waiting to get around a disabled car, when all of a sudden by shock from the controller of the car he was on, appellee was injured.

Where a train pulls up to a station and stops and a passenger in alighting is injured because the step of the car is broken or wanting, technically speaking the train is not "running" in the sense of being in actual motion at the instant when the passenger is alighting. But he is injured by the running of the train in the sense that it is being operated, and that as a part of such operation, the company must allow passengers proper opportunity for alighting.

Seaboard Air Line v. Bishop, 63 S.E. 1103, 132 Ga. 71. thus holding that when a train is stopped at the station and a passenger is alighting and the step of the car is broken and the passenger is injured, the prima-facie statute applies.

But second, if we should be mistaken in this, the doctrine of res ipsa loquitur applies, as laid down in the case of Railroad v. Groome, 97 Miss. 207.

OPINION

STEVENS, J.

On all points raised by appellant this case must be affirmed. The only assignment which merits any discussion is the contention that the prima-facie statute (section 1985, Code of 1906, as amended by chapter 215, Laws of 1912) is not applicable to the state of facts presented by this record. This statute as amended reads:

"1985 (1808). Injury to persons or property by railroads prima-facie evidence of want of reasonable skill and care, etc.--In all actions against railroad corporations and all other corporations, companies, partnerships and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, for damages done to persons or property, proof of injury inflicted by the running of the engines, locomotives or cars of any such railroad corporations or such other corporation, company, partnership or individual shall be prima-facie evidence of the want of reasonable skill and care of such railroad corporations, or such other corporation, company, partnership or individual in reference to such injury. This section shall also apply to passengers and employees of railroad corporations and of such other...