Louisville & N. R. Co. v. Jones

Decision Date03 December 1923
Docket Number23705
Citation134 Miss. 53,98 So. 230
PartiesLOUISVILLE & N. R. CO. v. JONES
CourtMississippi Supreme Court

Division A

Suggestion of Error Overruled Jan. 7, 1924.

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Action by T. L. Jones against the Louisville & Nashville Railroad Company and another. Judgment for plaintiff, and defendants appeal. Reversed and judgment rendered.

Judgment reversed.

Smith Young, Leigh & Johnston, for appellants.

The prima-facie statute of Mississippi, Hemingway's Code, section 1645, Code 1906, section 1885, has no application to this case, nor did the plaintiff seek to apply the same.

1. It has no application, because all of the facts with reference to the construction, condition and operation of the train were fully shown by the evidence. Hines v. McCullers, 121 Miss. 666, 83 So. 734; Ala. & B. R. Co. v. Thornhill, 63 So. 674; Krebs v. Pascagoula St. Ry. & Power Co., 78 So. 753.

2. Because this statute presumes negligence on the part of the Railway Company, where a person has been injured by the operation of a train, until the facts have been explained, but it does not presume any particular act of negligence, nor does it presume negligence on the part of any particular employee.

With these principles in mind, we will consider the case in its most favorable aspect to the plaintiff. There was no witness to the accident, except the plaintiff himself, and the railroad employees testified as to the proper construction, equipment, operation and management of the train. The plaintiff testified that he stopped thirty feet from the track to permit the train to go by, "and a flash came out and a lot of cinders, and they were hot, and one hit me in the right eye, and I slapped my hand over it and ran the car with one hand, and left it in front of the garage."

The plaintiff also testified, "The engine was puffing," and that the train was going about fifteen miles an hour; that the wind was not blowing; that there was not enough wind to distinguish at that time the direction of the wind.

Numerous witnesses on behalf of the defendants testified positively that the spark arresting features on the engine were of standard and modern design, and were in first class condition and repair, without any defects whatever; that the train, at the time it passed this crossing, was only a few yards from its destination, and was not working steam, but was running idle; that while a train is not working steam, or running idle, it does not throw out cinders; that a train when working steam will throw fewer cinders while running at a greater rate than six miles an hour than it will at a lesser rate than six miles an hour; that no matter how many cinders or sparks a train is throwing out, it always throws them straight up in the air, and they are only carried to one side by the wind or currents in the air.

The defendant's train, being operated by Engineer Holloway, was crossing over Washington Avenue, a street which intersected the station platform, at a distance of about three hundred yards from where the engine stopped. The plaintiff, driving a Ford runabout, with an extra low top that was up, and a windshield that was also in front of him, stopped about thirty feet from the track at the crossing. The engine passed over the crossing, running at least fifteen miles an hour, and just as it passed over, plaintiff saw a flash come out, and a lot of cinders, and they were hot, and one hit him in the eye; the train was not working steam, but was puffing. A cinder the size of a pin head was removed from his eye.

With this evidence in mind, let us consider whether or not the plaintiff proved any acts of negligence alleged on behalf of the railroad company and the engineer, and that such acts caused the accident. Conceding that the train was going over six miles an hour, the undisputed evidence is, first, that if the engine is not working steam, the speed has nothing to do with throwing the sparks; second if the engine is working steam, less sparks are thrown out at fifteen miles an hour than at six miles an hour. If you have any doubt of this, all you have to do is to listen to one. The puffing noise made by an engine which is drifting, and not working steam, is the result of the air being driven out of the cylinder while the piston works up and down in the cylinder. When a steam engine is running idle, instead of steam pushing the piston, the piston necessarily draws in and forces out air from the cylinder, thus making a puffing noise as it operates.

It is plain, therefore, that the undisputed evidence shows that the speed of the train was not the cause of the plaintiff's getting a cinder in his eye. The second count of the complaint alleges that the flues were defective. The plaintiff absolutely failed to prove the allegations of this count, because the undisputed evidence showed, first, that there was no leak in the flues whatever; second, that had there been a leak in the flues, the water would not have dripped into the fire, but would have fallen upon the brick arch, and been drained off. Third, the blower was not operated by the defendant, Holloway, but is operated exclusively by the fireman, so that if there was any negligence in the operation of the blower, it was that of the fireman, and not of the engineer.

The third count is based upon the alleged negligence of the company in furnishing a defective screen, combined with the act of the engineer in exceeding the speed limit. Plaintiff failed to prove this count, because the undisputed evidence shows, first, that the screen was in no way defective, but was in proper condition; second, that the speed of the train was not the proximate cause of the injury, because when the engine is not working any steam, it is immaterial at what speed it is running; and third, because if it is operating steam, it throws less cinders out at a rate faster than six miles an hour than at a rate less than six miles an hour.

The testimony of the plaintiff in this case is entirely contradictory to all reason. It is common knowledge that if an engine throws out any cinders, it throws them out of the smoke-stack, which points straight up in the air. The cinders cannot come out of the side of the engine, they have to go straight out of the top. When they are hurled straight up in the air, if gravity is the only force that operates upon them, they will come straight back to the ground or on top of the train. In order to carry the cinder to one side or the other, there must be some wind or other force. Nevertheless, the plaintiff claims that there was no wind or other force, and he also claims that the cinder not only traveled thirty feet from the track, but it came around the windshield and under the top and hit him with such force that it embedded itself so deep in his eye that it required a skilful oculist to remove it. Can anyone believe that when the windshield was in front of the plaintiff's eyes and an extra low top over his head, the cinder could curve around and hit him in the eye, without any wind blowing?

The fact that the plaintiff saw a...

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