Matthews v. New Orleans & Northeastern Railroad Co.

• Citation: 93 Miss. 325,47 So. 657
• Parties: DAVID M. MATTHEWS v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY
• Decision Date: 14 December 1908
• Court: Mississippi Supreme Court

47 So. 657

93 Miss. 325

DAVID M. MATTHEWS v. NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY

Supreme Court of Mississippi

December 14, 1908

October 1908

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Matthews appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there.

The suit was for damages for the alleged wrongful death of William Matthews, a brakeman in the employ, of the defendant railroad company, who was killed while engaged in setting out certain cars of a freight train which were being moved onto a side track at Carriere, Miss. There were no eyewitnesses to the accident, deceased was found under the train, too nearly dead to make any statement as to how his injuries were received, and soon died. The testimony and surrounding circumstances led to the conclusion that he must have gone between the cars in order to uncouple them. Plaintiff claims that the appliances were so defective that this was necessary, as the lever would not withdraw the coupling pin especially when the cars were on an incline and taut, and that the frog at which the accident occurred was unblocked so that deceased's foot was caught in it and he was thrown under the moving cars. The defendant pleaded contributory negligence, setting up a rule of the railroad company forbidding employees going between moving cars. Plaintiff offered evidence showing or tending to show that the rule was never brought to the knowledge of deceased, and had, in fact, been abandoned. The facts are further stated in the opinion of the court.

Reversed and remanded.

Williamson & Gilbert, for appellant

In granting the peremptory instruction for the defendant the court below deprived the plaintiff of the benefit of the prima facie statute. Code 1906, § 1985; Railroad Co. v. Brooks, 85 Miss. 269; 38 So. 40; Railroad Co. v. Landrum, 89 Miss. 399, 42 So. 675; Railroad Co. v. Hicks, 91 Miss. 273, 46 So. 360.

There were no eye witnesses in the instant case to show how deceased got under the cars, no evidence as to what he was doing, no evidence as to "how the injury occurred." The defendant denied the facts and circumstances adduced by the plaintiffs in an effort to show how the injury occurred; the testimony of the defendant was that the train, track and appliances were in the usual perfect condition, and state of repairs. The defendant's witnesses testified that no cars were uncoupled, that everything was in good condition, but wholly failed to offer even an exculpatory conjecture in its defense. Yet, with this denial of plaintiff's evidence on every vital point, and the hopeless conflict of the evidence, the absence of eye witnesses, and the total failure of the defendants to adduce exculpatory proof, the court gave the peremptory instruction. As in the Brooks and Landrum cases, there was a conflict of evidence and the court held that the province of the jury was to settle those sorts of conflicts.

Under the Brooks and Landrum decisions, the first unshirkable duty imposed upon the railroad company is to show "how the injury occurred." What was Matthews doing when he got under the cars? What were Brooks and Landrum doing when they were run over and mangled and killed? Argus-eyed employees may be exercising their usual blameless care, the unspeakable dead may have, as usual, under the report of railroad witnesses, flung ages of instinct of self-preservation to the wind, yet, unless the railroad company shows what he was doing, how the injury occurred, it must, under a wise law, submit to a verdict of the jury.

In the Hicks case every argument against applying the prima facie statute for the benefit of employees has been silenced by that masterful opinion. It gave to employees the benefit of the presumption and gave to the statute a broad and liberal interpretation. Criticising the former decisions interpreting this statute the court say: "It should have been interpreted precisely as if it had been written thus: 'Proof of injury inflicted by the running of locomotives or cars of such company shall be prima facie evidence of liability on the part of the company.' That was plainly the thought and purpose dominating the statute, and that purpose Should have been given effect, and the awkwardness of the legislative language disregarded."

In this case the railroad company made no effort to show what Matthews was doing at the time of his death, then how can it escape the presumption? It wholly failed to meet the first condition of the two-fold burden, then there can be no exoneration because that condition is pre-essential. The railroad company cannot argue that the plaintiff's testimony tended to show or did show how the accident occurred because the railroad company by its testimony put the plaintiff's testimony in sharp issue by denying and seeking to impeach it. It cannot ask that its own testimony be disbelieved and also that the plaintiff's be held false and unbelievable.

There is yet another presumption of law that required this case to be submitted to the jury. In the case of Adams v. Bunker Hill & Sullivan Mining Company, 11 L. R. A. (N. S.), 844, is found the following rule: "In an action against the master for damages caused by death of the servant as a result of the master's negligence, the presumptions which arise in favor of the instinct of self-preservation and the known disposition of men to avoid injury and personal harm to themselves, constitute a prima facie inference that the servant was, at the time in the exercise of ordinary care, and was himself free from contributory negligence. In case where the injury complained of resulted in the death of the injured person, the law presumes that such person exercised the measure of care which it was his duty to exercise."

This presumption arises, of course, only where there were no eye witnesses as to how the injury occurred. We call the court's special attention to this case and the notes thereto. This is the law in Mississippi, as we understand it. The burden of proving contributory negligence is upon the defendant.

Under a well settled rule the evidence and all legitimate inferences and deductions therefrom in favor of the appellant, in a case where a peremptory instruction is granted by the trial court, are taken as true. Then in this case there were defective coupling and uncoupling apparatus and an unblocked frog. The use of these defective appliances and ways under unassailable authorities was negligence on the part of the railroad. It was a question for the jury as to whether decedent was injured by using them, just as it was a question for the jury as to whether the train of the railroad killed Landrum. It was then up to the defendant to show his contributory negligence, and, further, to overcome the presumption of due care by competent evidence. The misfortune of not having an eye-witness there, cannot be visited upon the plaintiff. If the railroad's conductor had been there assisting this boy in his hazardous business, rendered doubly perilous by worthless appliances, instead of being off at some other place, leaving the deceased to do this work alone on those sharp curves, it would have had some one who could have told how this injury occurred. Under the pleadings, defendant promised to prove that deceased went in between moving ears in violation of a rule of the railroad, yet the proof denied it; and, further, it failed to show that deceased had knowledge of the rule. We have found no case where this presumption of due care was overcome by any other presumption arising from a conjecture that a rule had been violated; the presumption of due care does not carry the self-destroying presumption of contributory negligence.

As stated above, this presumption only arises where some negligence is shown on the part of the railroad company, and where there are no credible eye-witnesses to the accident. We will not argue the self-evident proposition that the defective appliances created a prima facie case of negligence on the part of the company. Just here we desire to invoke the aid of Section 193 of the constitution in behalf of this presumption. We contend that even at common law, the presumption of knowledge of defective appliances would not attach to overcome the presumption of due care in their use, but a discussion of this is unnecessary. Section 193 provides among other things: "Knowledge by any employee injured of the defective or unsafe character or condition of any machinery, ways, or appliances shall be no defense to an action for injury caused thereby, except," etc.

So in this case we might admit that deceased had actual knowledge of the unblocked frog and the other defects and in no wise disturb the presumption.

The failure to block the frog was a positive violation of the duty of the master to maintain a safe roadway. This negligence resulted in the death of deceased. It was then incumbent upon the master to show the contributory negligence of the deceased in reference to the injury. This the railroad company did not even undertake to do, but denied that the frog was unblocked. It was content with the issue of fact. Under the pleading it simply became a question of whether the frog was blocked. The railroad company made no effort to show what deceased was doing at the time he got in the frog. The railroad company adduced no proof of anything he was doing after he flagged the engineer to back up. The plaintiff's testimony was that he was injured on account of this defective roadway. Under the Bussey case in 82 Miss. 616, 35 So. 166, it then became a question for the jury. It will be noticed that the testimony in the Bussey case did not explain what deceased was doing at the time of the injury; the last time he was seen...