Hooks v. Mills

• Citation: 57 So. 545,101 Miss. 91
• Court: United States State Supreme Court of Mississippi
• Decision Date: 12 February 1912
• Parties: W. B. HOOKS v. MRS. E. E. MILLS ET AL

57 So. 545

101 Miss. 91

W. B. HOOKS v. MRS. E. E. MILLS ET AL

Supreme Court of Mississippi

February 12, 1912

October 1911

APPEAL from the circuit court of Newton county, HON.C. L. DOBBS Judge.

Suit by Mrs. E. E. Mills et al. against W. B. Hooks. From a judgment for plaintiff, defendant appeals.

This is an appeal from a judgment for appellees, who were plaintiffs in the court below, for five thousand dollars for the death of E. E. Mills; the suit being predicated upon the alleged negligence of the appellant, due to the unsafe condition of a dummy line owned by him and used for bringing logs to his mill. The deceased was engineer on the only engine operated on the dummy line. At his own request he had been given supervision of the roadbed and track. In hauling a train load of logs to the mill, the engine left the track on a downgrade and was upset by the weight of the cars behind it, resulting in the death of Mills. The declaration contains the following allegation: "That the said rails of the said railroad track, at the point where said engine left the said track were not properly jointed, and the said rails were not bolted on the west side of said track, and secured by a fishplate and said railroad bed at said point was not provided with a sufficient number of cross-ties with the proper strength, and the ground or earth was not sufficiently tamped around the cross-ties, so as to fasten them securely, and the rails on said railroad bed at said point were not properly in line and said rails were improperly laid with low centers and high joints at said point."

On appeal, appellant assigns as error the refusal by the court to grant him a peremptory instruction, and the granting of instructions Nos. 3, 6, 9, and 10 for the appellees. These instructions are as follows: No. 3: "The fact that the deceased, Mills had the right to direct the trackmen where to work, would not necessarily imply that he was an expert as to the safety of the railroad track, or that he had any opportunity to judge of the sufficiency of the work after it was done." No. 6: "The court charges the jury, for the plaintiff, that in determining whether or not the deceased, Mr. Mills, had assumed charge of the repairs and maintenance of the railroad track, the jury is to look at all of the testimony, and weigh the same in the light of their everyday experience and common sense, and also in the light of what the evidence in this case shows the duties of his position as engineer to have been." No. 9: "The court charges the jury that no proposition or suggestion on the part of the defendant made to the deceased, Mills, with respect to his (Mills') assuming charge of or responsibility for the maintenance or repair of the roadbed of the railroad, could put that duty upon the deceased, unless the deceased did in fact undertake to assume those additional duties." No. 10: "The court charges the jury, for the plaintiff, that it is the duty of a person operating a railroad to at all times have and maintain a safe roadbed, and that when the defendant undertakes to show that he escapes this responsibility by pleading that the deceased himself had undertaken to look after the safety of the roadbed that the burden rests upon the defendant to make out that defense by a preponderance of the evidence."

Judgment reversed and remanded.

Green & Green, for appellants.

The court erred in not granting the peremptory instruction for the defendant. Proof of an injury is not sufficient to make a defendant liable. The burden, under the law, was upon appellee to show, first, a specific act of negligence, and second, that in pursuance thereof the injury occurred. Railroad Co. v. Cathey, 70 Miss. 337; Patton v. Texas & P. R. R. Co., 179 U.S. 658, 21 S.Ct. 275, 45 L.Ed. 386; 2 Labatt on Master and Servant, sec. 833; C. & I. Ry. Co. v. Sparrow, 98 Va. 630-641, 37 E. 302; N.W. R. R. Co. v. Cromer's Admx., 99 Va. 763-765, 40 S.E. 54; So. Ry. Co. v. Hall's Admr, 102 Va. 135, 45 S.E. 867; N. & W. Ry. Co. v. Poole's Admr., 100 Va. 750, 42 S.E. 882; N. & W. Ry. Co. v. Cromer's Admx., 101 Va. 667, 44 S.E. 898; Fuller v. Ann Arbor R. Co., 104 N.W. (Mich. 1905) 414; Grant v. Railroad Co., 133 N.Y. (1892) 657; Goronason v. Mfg. Co., 186, Mo. 300.

Section 1895 of the Code is not applicable because, in order to raise the prima facie presumption, it is requisite that the action be against the railroad company, not against an individual. Therefore, the rule above announced is here applicable and, we respectfully submit, conclusive of this case, for appellant, because nothing is shown in the testimony of appellee which would do more than warrant the wildest conjecture as to what was, in truth and in fact, the cause of this very lamentable accident.

But, independently of this, we submit that Mr. Mills was in charge of the construction and repair of this dummy line, and that it was his duty to keep the same in order. When he was first employed, Mr. Strickland was the foreman of the section gang, but, upon Mr. Stricklands being relieved, Mr. Mills became the only white man who went out after the logs, and thereupon Mr. Mills applied to Mr. Hooks to be put in charge of the entire track, and to have under his direction and control the men employed.

It is further shown that Mills was to have full authority to direct the hands where, when and how to work, and that for the repair of the track he was supplied with all of the requisite material of suitable kind and character.

The third instruction was: The fact that deceased, Mills, had the right to direct the trackman to work would not necessarily imply that he was an expert as to the safety of the railroad track, or that he had any opportunity to judge of the sufficiency of the work after it was done."

This instruction is in violaton of secton 793 of the Code, which provides:

"The judge in any cause, civil or criminal, shall not sum up or comment on the testimony, or charge the jury as to the weight of the evidence; but at the request of either party, he shall instruct the jury upon the principles of law applicable to the case."

The third and fourth instructions were upon the weight of the evidence, and for that reason should not have been given. The facts therein recited are competent evidence to be considered by the jury in determining whether the sale was made with fraudulent intent, but whether these facts and circumstances, if proved, indicated a fraudulent intent, was a question to be determined by the jury and not by the court. Jennings v. Thomas, 13 S. & M. 617; Fairly v. Fairly, 38 Miss. 280; May v. Vaught v. Taylor, 62 Miss. 500; French v. Sale, 63 Miss. 386.

Furthermore in Kearney v. State, 68 Miss. 240, Mr. Justice Cooper declared:

"Inference from the facts are to be drawn by the jury unaided and uninfluenced by the court. Our statute means this, or it means nothing. If juries, turning aside from the direction and control of their own judgment, unworthily submit to the impulses of passion, compassion or prejudice, the responsibility is with them, but the court may not, to prevent any such supposed inclination, invade the province of the jury by informing it what weight should or should not be given to establish facts." French v. Sale, 63 Miss. 391. See, also, Kimbrough v. Ragsdale, 69 Miss. 677; Railroad Co. v. Whitehead, 71 Miss. 451; Burt v. State, 72 Miss. 408; Thompson v. State, 73 Miss. 584.

It falls squarely within the condemnation of Minor v. Railroad Company, 69 Miss. 720. It unduly singles out issues and directs the attention of the jury to those issues, causing the jury to attach to such undue importance. See Levi v. Holberg, 71 Miss. 66; Bryant v. State, 73 Miss. 838; Cheatham v. State, 67 Miss. 635; Wilson v. State, 71 Miss. 880.

It is wholly immaterial whether Mills was an expert or not, or whether he had sufficient time to make the inspection or not. The sole question was, had he made an agreement whereunder and whereby such duty of repairing was vested on him; if such was the case, it did not require that he be either an expert, or that he be allowed to take advantage of his own dereliction in not doing that which he had agreed to do.

Furthermore, it is not permissible for an instruction to assume as a fact as to which the evidence is in conflict. So, when this instruction assumed that "the fact that deceased, Mills, had the right to direct the trackmen where to work," etc., thereunder and thereby appellee committed herself to the declaration that such a fact appeared in the record without controversy.

The ninth instruction was, "The court charges the jury that no proposition or suggestion on the part of the defendant made to the deceased Mills, with respect to his (Mills) assuming charge...