Ingram-Day Lumber Co. v. Harvey

• Decision Date: 17 October 1910
• Citation: 98 Miss. 11,53 So. 347
• Court: Mississippi Supreme Court
• Parties: INGRAM-DAY LUMBER COMPANY v. FRANK HARVEY

53 So. 347

98 Miss. 11

INGRAM-DAY LUMBER COMPANY v. FRANK HARVEY

Supreme Court of Mississippi

October 17, 1910

March 1910

APPEAL from the circuit court of Harrison county, HON. W. H. HARDY Judge.

Suit by Frank Harvey against the Ingram-Day Lumber Company. From a judgment for plaintiff, defendant appeals.

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

Judgment reversed and remanded.

Money &amp Graham, for appellant.

The court below should have excluded the evidence and directed the jury to find for the appellant; and having failed in that, should have peremptorily instructed the jury to find for the appellant as requested in appellant's first instruction upon the whole evidence.

If this were a case where mere negligence was charged, the appellee could not recover because of his contributory negligence in taking his seat and riding on the tank or tender which was being pushed by the engine, and where he remained with his back in the direction the train was going. If appellee had ridden either in the engine cab or on the log cars he would not have been injured, as no one riding in either of these places was hurt, hence he cannot recover. Illinois, etc R. R. Co. v. Brown, 77 Miss. 338; Martin v. Kansas, etc. R. R. Co., 77 Miss. 720; Railroad Co. v. Jones, 95 U.S. 439.

The appellant was not a common carrier. No fare was demanded of appellee, nor was any paid. The declaration is drawn on the theory that as he was riding on appellant's train for his own pleasure, and on no matters concerning appellant. The evidence showing the custom of appellant's servants to permit others to ride free of charge, discloses that appellee was a mere licensee, and it was upon that theory alone that the case was tried and submitted to a jury.

There can be no recovery upon the second count of the declaration alleging willful, wanton and reckless negligence in regard to the repair and condition of the road bed and track, alleged therein as the proximate cause of the injuries, or that the running of the train over it with the engine and tender reversed. When appellant got on the train the track was in the same condition and the engine and tender and cars were in the same position as they were at the time of the injury; and while the evidence shows clearly that it was no more dangerous to run the engine and tender reversed than forward, so far as jumping the track is concerned, yet even if it were, Harvey accepted the whole situation when he accepted the license, and thereby took upon himself all risk of danger incident to the running of the train. Appellant certainly was under no duty to appellee to keep its track in good repair; nor was appellant bound to run its train in any particular manner. No omission or affirmative act intervened between the time appellant boarded the train and the time of the accident to change the situation in this respect. Illinois, etc. R. R. Co. v. Arnola, 78 Miss. 787; Woolwine v. Railroad Co., 32 Am. St. Rep. 859; McCauley v. Tennessee, etc. R. R. Co. (Ala.), 9 So. 612; Railway Co. v. Sawyer, 46 So. 68; Railway Co. v. Rayley, 157 Fed. (C. C. App.) 532.

Nor can any judgment in this case be sustained based upon the count of the declaration alleging willful, wanton, reckless and gross negligence of appellant's engineer, Anderson, in operation of the train. The only duty appellant owed appellee in this regard was to exercise ordinary care, such as ordinarily is exercised under such circumstances, or in other words, to do no affirmative act of negligence that would amount to an intentional disregard for life or safety. Did appellant use reasonable care in the running of the train? There is no claim that appellant failed to perform its duty except as to the rate of speed of its train at the time of the injury, considering the alleged bad condition of the track, and this must be clearly shown by a preponderance of the evidence in the case.

A grossly negligent operation of the train under the circumstances was necessary to be established by appellee in order to entitle it to recovery, and the only negligent operation complained of was the excessive speed. We submit that this contention is not sustained by any evidence; the record utterly fails to show that the particular rate of speed at which the train was run at the time of the accident was the proximate cause of the injury to Harvey. It was necessary to show this by a preponderance of evidence and circumstances. The legal relation of cause and effect was not established between this particular alleged negligence and the injury suffered. It is not sufficient to merely show negligence, even where shown, and a possibility that injury resulted therefrom was caused thereby; there must be shown a connection between the two. Illinois, etc. R. R. Co. v. Cathy, 70 Miss. 332, 12 So. 253; Winkle v. Peck, 112 S.W. 1026; O'Donnel v. American Mfg. Co. (La.), 36 So. 661; Keenah v. McAdams, 113 N.Y. Sup.; Whitehouse v. Bryant Lumber Co., 97 P. 751; Western, etc. R. R. Co. v. Essinger, 22 S.E. 580; Southern R. R. Co. v. Guyton, 25 So. 34; Williams v. Railway Co., 48 So. 209.

J. H. Mize and Jeff. D. McLendon, for appellee.

It is important to note the exact status of appellee when he was on the train. He was not a passenger; he was not an employe; and he was not a trespasser. He was a licensee under the most favorable conditions; in fact, he was a licensee by invitation. Here, we have the appellant, a logging railroad and saw mill company, which in order to run its saw mill business has to employ a large number of employes, and, by its general custom, has transported their employees to and from their work; and has in fact been in the habit of transporting everybody who had occasion to go out to the end of the line; and, when appellee boarded the train in search of work from appellant, he immediately became a licensee. Certainly appellant owed appellee the duty of protection against gross carelessness and willful recklessness. This question was properly submitted to the jury over no objection by appellant.

Was the proof sufficient to warrant the jury in finding the appellant guilty of gross negligence amounting to recklessness, willfulness or wantonness? We contend that it was. There is no question that appellee was invited to ride upon the train. Anderson, the engineer, testified that he told appellee that he would see the superintendent Barrett, and speak to him about Harvey's getting a job with appellant; and that Anderson did speak to Barrett, who said that there was no employment for appellee. Appellee testified that Barrett told him that he would do everything possible to secure appellee employment.

All of the witnesses for appellee testified that the track was in very bad condition; that it was from four to six inches lower than it ought to be, and swinging three or four inches. One of the foremen of the appellant company, who had charge of the tracks at this particular point, testified that it was his duty to keep it in repair, and that the track at such place was about six inches lower than it should have been.

Practically all of appellant's witnesses testified that the track had been washed out, but had been filled up and put in a reasonably safe condition; and that the train was running from twelve to fifteen miles per hour. The evidence further shows that, notwithstanding the fact that the appellant company knew of the defective condition of the track prior to the wreck, yet it continued to run trains over it according to its regular custom or schedule. Anderson, the engineer, further testified that he came over the track on Saturday night before the wreck; that he did not observe the bad condition of the track, and hence made no report of it. On cross-examination he admitted that he had heard of the bad condition of the track; but that no one had told him at what particular point the track was defective, and having seen other engines run on the track, he supposed that his could also run with safety.

This case shows a train with twelve empty cars being pulled by an engine reversed, that, is, with the pilot next to the cars and the tender in front, with a number of employes, including the superintendent, riding on the tender of the engine, the rate of...