Louisville & N. R. Co. v. Daniels

Decision Date31 March 1924
Docket Number24014
Citation135 Miss. 33,99 So. 434
PartiesLOUISVILLE & N. R. CO. v. DANIELS
CourtMississippi Supreme Court

Division A

(Division A.) January 1, 1920

1 RAILROADS. Company liable for negligence of postal clerk suffered to engage in dangerous practices.

Although a railroad company, as a general rule, is not responsible for the negligent acts of a postal clerk upon its train by the federal government in charge of its mails, because such clerk is not an employee of the railroad company, and therefore his acts are not its acts, still a railroad company may become liable for the negligent acts of such postal clerk where without objection, although objection might be effective, it knowingly suffers such mail clerk to engage in practices dangerous to those in proximity to its track, and to whom the railroad company owes the duty of reasonable care to protect such persons from injury by reason of the passage of its trains.

2 NEGLIGENCE. Defendant not liable where, except for intervention of third party, no injury would have occurred.

Where except for the intervention of a responsible third party, the defendant's negligence would have produced no injury to the plaintiff, and the negligence of the defendant had no causal connection with the wrongful act of such intervening third party, the defendant is not liable to the plaintiff for such injury.

3. RAILROADS. Injuries to person at station held caused by postal clerk's act, for which railroad was not liable.

Plaintiff was on the station platform of the defendant, a railroad company, which station was situated in a municipality in which under the law the maximum speed of trains was six miles per hour. Plaintiff was injured by the postal clerk upon defendant's train, employed by the federal government in charge of its mails, throwing a mail sack out at the wrong place while the train was running about thirty-five miles an hour, which mail sack struck and injured plaintiff, for which she sued the railroad company. There was no evidence that the speed of the train had any causal connection with the mail bag being thrown out at the wrong place.

Held, that the proximate cause of the injury was the act of the mail clerk, for which the appellant is not responsible.

HON. D. M. GRAHAM, Judge.

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

Action by Birdie Daniels against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and judgment rendered.

Reversed.

Smith, Young, Leigh & Johnston, for appellant.

I. The court erred in refusing to grant the peremptory instruction requested by the defendant. The facts in this case are clear and undisputed. The plaintiff was not injured by a servant or agent of the railroad company, but by a United States mail clerk, for whose acts the railroad company is not responsible. It is a matter of common knowledge that railroads pull mail cars owned by the United States Government, and manned by United States mail clerks. The railroad company has no jurisdiction or control over the mail clerks, and therefore is not in any way responsible for their negligent acts unless there are facts to charge the railroad company with knowledge that the mail clerks are engaged in a negligent practice, and the railroad company fails to use proper diligence to have such negligent or dangerous practice stopped. But the evidence in this case shows that it has always been the custom to throw the mail pouch off at the mail crane. The railroad had no way of anticipating that the mail clerk would throw the mail pouch off the train at a point four hundred and fifty or five hundred feet from the place where the mail was always thrown, and therefore it was impossible for it to have prevented the mail clerk from doing so.

The courts have uniformly held that the only basis for liability in such cases is where a practice had been made of throwing the mail bag at the place where the plaintiff was injured, and the railroad failed to use proper care to stop such a practice or to protect persons from being injured thereby. Pittsburgh C. C. & St. L. Railway Company v. Warrum, 82 N.E. 935; Muster v. C. M. & St. P. Railway Company, 61 Wis. 325, 21 N.W. 223, 50 Am. Rep. 141; Ergenbright v. St. Louis, I. M. & S. Ry. Co., 163 P. 173; Ayres v. Delaware, L. & W. R. Co., 28 N.Y.S. 789; Southern Railway Company v. Rhodes, 86 F. 422; Poling v. Ohio River R. Co., 18 S.E. 782.

It has been decided several times by the supreme court of Mississippi that a railroad is not responsible for things thrown from a train by its servants or agents when not acting within the line and scope of their employment. Miss. Central Railway Co. v. Dave McWilliams, 112 Miss. 238, 72 So. 925, 1917B, L. R. A.; Burke v. Shaw, 59 Miss. 443; Louisville, N. O. & T. R. Co. v. Douglas, 69 Miss. 723, 11 So. 933, 30 Am. St. Rep. 582; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. Court, 620. If the railroad company is not responsible for objects thrown from the train by its own servants when not acting within the line and scope of their employment, then certainly it is not liable for the acts of mail clerks who are not employed by the railroad company, and who are not subject to its control.

II. The speed of the train was not the proximate cause of the injury. It is true that the train in this instance was exceeding the six mile speed limit. But certainly the statute should not be enlarged by interpretation to extend to cases where the speed of the train is not the direct and proximate cause of the injury, and where the speed of the train is merely a condition upon which an independent act of some other person for whose act the railroad company is not responsible, operates to cause the injury.

Here the act of the mail clerk in deliberately throwing the mail pouch out of the mail car at a place four hundred and fifty or five hundred feet from the usual place was the direct and proximate cause of the plaintiff's injury. The mere fact that the train was going over six miles an hour at the time the mail clerk threw the mail bag from the car does not make the railroad company responsible for the accident. See Howell v. Illinois Central Railroad Company, 75 Miss. 242, 21 So. 746; Clarke v. Illinois Central Railroad Company, 286 F. 915; Thornton v. Louisville & Nashville Railroad Co., 70 S.W. 53.

The plaintiff relies on the case of Childs v. Railroad, 86 Miss. 361, where a train was exceeding the speed limit of six miles an hour, and a piece of iron flew from the train striking a person and injuring her. In that case, the court held that the speed of the train was the proximate cause of the injury because it was the speed of the train that gave the piece of iron the force that caused it to fly from the train and strike the plaintiff. There was no intervening act on the part of any human being, but it was purely the force caused by the speed of the train which made the iron fly and hit the plaintiff. In the case at bar, there intervened the act of the mail clerk.

Mize & Mize and C. B. Adam, for appellee.

If the railroad company was guilty of negligence in violating the speed law, as in the instant case, and the mail clerk while the railroad company was violating the speed law, whether negligently or not, threw off the mail pouch and injured a person at the depot on business, then it would be a question for the jury to say if the negligence of the railroad company in violating the speed law contributed to the injury, irrespective of whether or not the mail clerk was negligent in throwing off the mail bag.

Again, if the railroad company was negligent and the mail clerk was negligent then it is a cause of joint tort-feasors and it is for the jury to say whether or not they are jointly or severally liable, and either one, or both jointly, can be sued. Finally, if the railroad company was negligent in violating the speed statute and the mail clerk was not negligent in throwing the bag off, then it is a question for the jury to say if the negligence of the company contributed to the injury.

The question in the instant case submitted to the jury was whether or not the negligence of the railroad company in violating the speed law proximately contributed to the appellee's injury, if she was injured, as the negligence vel non of the mail clerk was not in question. The railroad company was guilty of the grossest kind of negligence in running said train at thirty-five miles an hour at the depot in Long Beach. This rate of speed was undenied.

Our contention that if the railroad company's violation of the speed law at the time of the injury to appellee, situated as appellee then was, proximately contributed to the injury, appellee is liable, irrespective of the negligence vel non of the mail clerk, is supported by Muster v. Chicago M. and St. P. Railroad Company (Wisconsin), cited in 18 American & English Negligence Railroad Cases, 113.

If the train in the instant case had been running at a lawful rate of speed when the mail bag was thrown off, the bag might have been thrown off at another place or appellee might have been at another place by the time the bag was thrown off. Tendall v. Railroad, 91 So....

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