Louisville & N.R. Co. v. Joullian

Citation76 So. 769,116 Miss. 40
Decision Date26 November 1917
Docket Number19730
PartiesLOUISVILLE & N. R. CO. v. JOULLIAN
CourtUnited States State Supreme Court of Mississippi

Division B

APPEAL from the circuit court of Harrison county, HON. J. H NEVILLE, Judge.

Suit by J. F. Joullian, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

Gregory L. Smith and Joel W. Goldsby, for appellant.

The evidence shows, without contradiction, that the appellant's servants used every means within its reach and as well as its best skill and material and labor available for the purpose of getting the vessel off of the track without injury to it, and during this whole time appellee and his father, who were familiar with the handling of boats, were in the same neighborhood, were advised of the condition and position of the boat as well as the surroundings, and made no effort either to remove the boat themselves, or to direct the appellee's servants in removing it.

The sixth and seventh assignments of error are well taken and should be sustained. While it may be true that the appellant would not have been justified in unnecessarily doing injury to the property of the appellee, yet it had a right to protect its own property even at the expense and loss of the appellee, as is clearly established by the evidence in this case. Beach v. Schoff, 28 Pa. 195, 70 Am. Dec. 122.

And the refusal of the charges asked by the appellant as set out in the transcript of the record in the sixth and seventh assignment of error, was error in that they withdrew material questions from the consideration of the jury, and the court erred in so doing it and said assignments of error should be sustained. McKeesport Sawmill Co. v. Pennsylvania Co., 122 F. 185-6 and 7.

As we understand the law, as plainly set out by the authorities, it was the duty of the appellee to move, at the earliest possible moment, and to be extraordinarily diligent in the removal of his vessel; that if he failed in that duty, the appellant was not bound to use the highest skill; that it was not bound to have skilled workmen and the best appliances to meet the emergency, but it was only necessary to have such persons and material as were available to it, under the surrounding circumstances, in attempting to remove the vessel from the track and that if it could not move it, under the circumstances of this case with the labor, skill and material which it had available, it had a right to destroy the vessel in order to clear its track, under the circumstances as set out in the evidence in this case.

We respectfully submit that the judgment of the circuit court should be reversed.

Dodds &amp Montgomery, for appellees.

The third and fourth assignment of error attack the two instructions given for plaintiff and set out on pages 12 and 13 of the record. These instructions were drawn according to the rule laid down in the case of Postal Telegraph and Cable Company v. Gulf & Ship Island Railroad Company, 110 Miss. 770, 70 So. 833, where this court held that the Telegraph company had wrongfully strung its wires along and upon the right of way of the Gulf & Ship Island Railroad Company, and was therefore a trespasser. But the court held that the railroad could not use excessive force in the removal of the wire and was liable for damages caused by its own arbitrary destruction of the wire. Postal Telegraph and Cable Company v. Gulf & Ship Island Railroad Company, 110 Miss. 770, 70 So. 833.

This Postal Telegraph case cites with approval 38 Cyc. 1053, as the proper rule. We quote from this citation as follows: "Right in rem of defendant to realty not in possession of another. (1) In general. An owner of land may justify the removal of chattels which are wrongfully on his lands, however, but care must be used in the removal and it should be effected with as little injury to the chattels removed as is possible, and without the exercise of excessive force. 38 Cyc., page 1053.

We submit that appellee's instructions come squarely within the rule laid down by this court, and it was the theory of the defendant as shown by its notice under the general issue which is set out on page eight of the record, that the defendant used all its available means and skill on hand and could not clear its tracks without destroying this boat. This theory was fully and squarely presented to the jury by instructions number four and six requested by and granted to defendant. These instructions are set out on pages sixteen and seventeen of the record.

Appellant cites two Pennsylvania cases, and contends for the rule there laid down. We submit to the court that in both of these cases the property of the defendant was greatly endangered and imperilled by the property of ...

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3 cases
  • Stirling v. Logue
    • United States
    • United States State Supreme Court of Mississippi
    • 23 Septiembre 1929
  • Burton v. Pepper
    • United States
    • United States State Supreme Court of Mississippi
    • 26 Noviembre 1917
  • Pruitt v. State
    • United States
    • United States State Supreme Court of Mississippi
    • 3 Diciembre 1917

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