Illinois Central Railroad Co. v. Woolley

Decision Date21 May 1900
Citation77 Miss. 927,28 So. 26
CourtMississippi Supreme Court
PartiesILLINOIS CENTRAL RAILROAD CO. v. JULIA A. WOOLLEY

March 1900

FROM the circuit court of Lafayette county HON. Z. M. STEPHENS Judge.

The appellee, Julia A. Woolley was plaintiff, and the appellant railroad company, defendant in the court below. The facts are stated in the opinion of the court.

Reversed and remanded.

Mayes &amp Harris, for the appellant.

The proximate cause of the injury in this case was the negligence of some fellow-servant of the engineer--either the engineer fireman or brakeman on the train who had handled the car, or of the depot agent. The negligence which was the proximate cause of the injury, and it is to the proximate cause alone that the court will look, was the negligence of a fellow-servant, for whose negligence a right of action was given for the first time by the constitution of 1890, and being such, must be governed by the case of Illinois, etc., R. R. Co. v. Hunter, 70 Miss. 471.

In order to test the question as to the proximate cause in this case, taking the facts as we find them in the record, the conclusion is irresistible that notwithstanding the condition of the track, the injury could not have occurred without the intervening negligence of those who handled the car which rolled an the track, either by failure to set the brakes or leaving the car in an improper position on the track.

Under the rule laid down by all the authorities in determining what is the proximate cause of an injury, it is clear from this record that the condition of the track, conceding it to be defective, was the remote cause of the injury, and, therefore, not to be considered in determining the rights of the parties in the case. The negligence, therefore, being the negligence of a fellow-servant for whose negligence the deceased would have had no right to sue but for the provision of the constitution of 1890, and that clause of the constitution gives the right in such cases to the legal or personal representative of the deceased. Cooley on Torts, p. 73.

So it is perfectly clear that, notwithstanding the fact that the safety switch was not furnished at Lamar station, notwithstanding the fact the track was on the grade, this track had been used for years without injury or danger to any one. It is shown by the testimony of all the witnesses that this track could only be dangerous when the rule of the company in regard to setting the brakes of the cars left on this track was violated. In other words, with or without a safety switch, the track is shown to be perfectly safe, if the rule of the company in regard to setting brakes on cars left thereon was complied with.

Therefore the cause of the injury in this case was the failure to comply with this rule, or due to some other cause intervening, for which the railroad company would not be responsible. If it was due to a violation of the rule in regard to setting brakes, then it was the negligence of a fellow-servant of Woolley, and consequently, under the law as it then existed, the widow had no right of action.

But if we are mistaken in this, and we do not think we can be, there are Other manifest reasons why the plaintiff cannot recover in this case, and to those points we now address ourselves.

(1) We respectfully submit that there has been a failure on the part of the plaintiff to make out a case against the railroad company on the question of negligence. It is settled in this state, beyond any dispute, that in a case of this character, that is, in a suit by an employe against a railroad company to recover for injury sustained, the burden of proof is on the plaintiff to show negligence. No presumptions are indulged in his favor. This is settled in the case of Short v. New Orleans, etc., R. R. Co., 69 Miss. 848.

So far as we can gather from the drift of the questions asked by the plaintiff on the trial of this case, and the character of proof offered, the contention is that the railroad company was negligent in regard to the side-track on which the car was standing, and that the station agent was negligent in his attention to the box car which was left on the track.

In regard to the conduct of the station agent, it is shown beyond any dispute, by four witnesses, that the rule of the company, in regard to the setting of the brakes on a car left standing at a station was complied with. The station agent says he saw the brake set, and knows that the brakes were properly set. He testifies, further, as is shown in the statement above, that he had handled the particular car which had been on that side-track for two or three days, and he had set the brakes himself, and knew that the brakes were in good condition. In addition to this, we have the positive testimony of Littlejohn, the brakeman who set the brakes, and of the engineer, Ruffin, who says he was sitting in his cab looking out at Littlejohn when he set the brakes, and of Muse, conductor of the train.

Those were the last railroad employes who handled that car before the collision occurred, and they all testify that the car was setting on that part of the side-track which is shown by all the witnesses, even Gallagher himself, to have been level. The car was not setting on a grade.

Of course, we recognize the fact that as against this there is the circumstance that this car did by some means get on to the retain line, and was struck by Woolley's train; but it is shown positively that there was an unusual wind that night, blowing from south to north, and it is shown also by Ruffin, the engineer, and by Muse, the conductor, that there were some boys about that car at the time they were moving it.

The station agent, testifies positively that at 5:30, when he went to his supper, the car was standing where it had been left by the train which had last moved it -- that is to say, on the side-track opposite to the cotton platform, where the track was level. He returned to the depot at 6:30, an hour later, through the rain, his lantern being extinguished by the storm. He says he did not notice the car, because there was nothing to cause him to notice it, as he had left it in a safe place with the brakes properly set. He states it was not his duty to stay and watch the car continuously, and it is not improbable that some mischievous boys about the station may have tampered with the brakes during the absence of the station agent, and, this severe and sudden wind arising, the car was blown from the level part of the track to the incline and then rolled out to the main line. If this were the fact, the company was not liable. It was not responsible for the action of the wind; nor could it be held liable for the acts of any malicious or mischievous persons who might have tampered with the car during the absence of the station agent.

So far as the testimony of the station agent, and those who handled the car, is concerned, all was done that should have been done. The rule governing the station agent is set forth in the record.

Many independent causes intervened to have gotten this car out of its proper position and onto the main line--the tampering with the brakes, the wind, or, what was at that time not a very uncommon thing in that part of the state, the act of train-wreckers, taking advantage of the dark.

In regard to the condition of the track, we think, manifestly, no negligence is shown, because it is conclusively shown, even by the witness Gallagher, plaintiff's star witness, that this track was perfectly safe for ears with the brakes set, and it was also shown by Brown that no safety switch was necessary at that place, and that the track then being used, as it was, as a house track as well as a passing track, the safety-switch was not required. The grade in the track was not sufficient to require one. The condition of the track was clearly the remote cause of the injury.

We think the plaintiff has failed to show negligence. He has failed to show any violation of any rule or regulation of the company, or the breach of any duty that the railroad company owed to the deceased.

2. But, conceding for the sake of this discussion that there was sufficient evidence on this line for the jury to pass on, we respectfully submit that the contributory negligence of Woolley, the engineer, is made out by the overwhelming evidence in the case.

In the first place, as we have shown above, there was no dispute whatever as to the existence of the two rules, one being that conductors and engineers, when approaching train order offices, must have their trains under control, and the rule, known as rule 89, that in case of storms and fogs, necessary additional precautions must be taken by trains to insure safety from rear end collisions.

And in addition to that, there can be no dispute as to the positive law of the state of Mississippi which forbade the running of trains at a greater rate of speed than six miles an hour through cities, towns, and villages. The plaintiff's testimony shows that Woolley was violating each of the above named rules and the statute of the state. There is no pretense that he was obeying the rules of the company or the law of the state at the time this injury occurred.

The whole line of the plaintiff's effort is an attempt to excuse this negligence, by showing an habitual violation of the rule as to having trains under control. There is no attempt to show that rule 89 was ever violated at the time with or without the knowledge of the company, but there is an attempt to show that the rule in regard to having trains under control was violated, and that the law in regard to running through towns at a greater rate of speed than six miles an hour was violated repeatedly. But there was an utter failure to show that knowledge of this...

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