Mississippi Cent. R. Co. v. Hardy

• Decision Date: 02 July 1906
• Citation: 88 Miss. 732,41 So. 505
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENTRAL RAILROAD COMPANY [*] v. RUFUS R. HARDY

41 So. 505

88 Miss. 732

MISSISSIPPI CENTRAL RAILROAD COMPANY ^[*] v. RUFUS R. HARDY

Supreme Court of Mississippi

July 2, 1906

FROM the circuit court of, second district, Perry county, HON WILLIAM T. MCDONALD, Judge.

Hardy the appellee, was plaintiff in the court below; the railroad company was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The suit was for personal injuries sustained by appellee by reason of the derailment of appellant's locomotive on which appellee was working as a fireman at the time of the injury. Appellee was engaged in his duties as fireman and was on the tender of the locomotive when it became derailed and appellee was caught between the tender and cab and fastened in the wreckage, receiving injuries on the head and leg, suffering physical and mental anguish, and is still a cripple. The declaration alleged that the injuries were due to the negligence of the defendant company, in that the front trucks did not have the proper gauge or were out of gauge; that a flange of a wheel of said truck was badly worn that the switch where the derailment occurred was not properly constructed, or was not properly adjusted at the time of the accident, so that the truck split the switch that the defendant failed to provide a safe way or track, as was its duty, over which to run its trains; that the defendant negligently failed to supply all the cars in said train with air brakes, which, had they been supplied, would have enabled the engineer to have stopped the train promptly and averted the injuries of which complaint is made. Plaintiff further averred in the declaration that the accident which caused his injuries was due wholly to the negligence of the defendant railroad, without any fault or negligence on his part.

The defendant demurred to the declaration on the ground of duplicity, uncertainty and insufficiency. The demurrer was overruled. The case went to trial on the merits, and the jury awarded the appellee $ 10,000 as compensatory damages. Among the numerous errors assigned, which are treated in the opinion of the court, is one based upon the modification of the eleventh instruction asked by the defendant, which is as follows, the modification being indicated by italics:

"No 11. Before the plaintiff is entitled to recover in this case he must establish to the satisfaction of the jury and by a preponderance of the evidence, first, that the trucks of the engine did not have the proper gauge, or were out of gauge; or, second, that the flange of the left wheel of the front truck was worn so as to make it unfit for use; or, third, that the defendant negligently failed to supply the cars in said train with sufficient air brakes; or, fourth, that the switch where the derailment occurred was not properly adjusted at the time of the accident, and a failure so to do was the proximate cause of the injury to plaintiff."

Affirmed.

S. E. Travis, for appellant.

The plaintiff seems to have been unsettled as to any single ground of recovery, and attempts to attribute the injury to one or more of many different neglects on the part of the defendant.

The plaintiff's demurrer to the declaration having been overruled, proceeded to develop the case with testimony, over the objection of the defendant, in the hope of recovering either on the idea that the master did not furnish a safe way and machinery, or that a fellow servant was negligent in failing to couple up the air brakes. It was not possible. The demurrer should have been sustained. See, in this connection, Railroad Company v. Abrams, 84 Miss. 456 (s.c., 36 So. 542); G. & S. I. R. R. Co. v. Bussey, 79 Miss. 597 (s.c., 31 So. 212).

Instruction number one for plaintiff is erroneous. It tells the jury to find for the plaintiff, if he was injured as a result of the derailment, if the derailment occurred because of the negligence of the defendant in failing to provide a safe switch at the point of the derailment, or in failing to provide front or leading pony trucks for the locomotive of the proper gauge. There is no testimony at all to the effect that the pony trucks were out of gauge. The only testimony on that subject was that the flange on one of the wheels was worn some. The testimony shows, with no contradiction, that the switch was put in perfect order the day before.

Instruction number two for plaintiff is fatally erroneous. The court will remember that there is only one allegation in the declaration relative to equipment--failure to supply all the cars in the train with air brakes--while this instruction tells the jury that if the defendant failed in any respect whatever to equip the train, or if it was only partially equipped in any respect, and the plaintiff's injury resulted therefrom, that the defendant is liable and the jury will so find.

No railroad company can live up to such standard. To keep its machinery perfect in all respects would be a greater task than for a human being to keep himself perfect in all respects. There is no theory upon which such instruction can be upheld. This is a shot at every imaginable failure in equipment, and the plaintiff should certainly have been confined to his declaration. This instruction proceeds on the idea that the defendant was required at all hazards to have absolutely safe appliances.

Instruction number three for plaintiff is also erroneous. It tells the jury that if the derailment was caused either by the pony trucks being out of proper gauge, or by the switch where the derailment occurred being defective, or both combined (whether defendant was negligent or careful) the defendant is liable; still proceeding on the theory that the defendant was required to have an absolutely safe way and appliances, in all events and under all circumstances.

Instruction number four is also erroneous. It tells the jury that if the derailment was caused by defendant's negligence, then the defendant is liable. It is not confined at all to the allegations contained in the declaration, but if the derailment is caused by defendant's negligence in any respect whatever, whether such negligence is mentioned in the declaration or not, then the defendant is liable; holding to the theory that the defendant was required to have an absolutely safe way and appliances, not only in the respects mentioned in the declaration, but in all respects.

Instruction five is erroneous on the same ground. It also tells the jury that if the injury was due to the negligence of the defendant, then the defendant is liable, regardless of allegations or proof.

Instruction seven for plaintiff is also erroneous. It tells the jury if the injury was the direct result of the negligence of the defendant company the plaintiff is entitled to recover for the disabling effects of the injury, both present and prospective. This is certainly not the law. The defendant might have been negligent in some respects, and still not liable. It was certainly not liable for failures not mentioned in the declaration. It might have been negligent in some measure as regards the things mentioned in the declaration and still not be liable. It is only held to reasonable care. It was not liable for any injury that may have resulted after the use of reasonable care.

The court erred in modifying instruction seventeen asked for by defendant, by inserting the words "reasonably safe" instead of the words "master car builders' rules" and erasing "and that the defendant knew, or ought to have known the same were in such condition, before the jury can conclude that the defendant was negligent in this regard." If the flange was within the master car builders' rules it was reasonably safe. This is very important when we remember that Russell was the only witness who claimed that the flange was worn until it was condemnable, and he stated that the flange was "just under the gauge," barely condemnable, when the opposite truck was not worn at all. This very testimony went a long way to overcome lack of diligence on defendant's part, but as will be seen, the court kept up the idea that the defendant was required to have an absolutely safe way and absolutely safe appliances, destroying by instruction the effect of such testimony. It is manifestly improper to hold that the defendant could be negligent as a master in this regard, to the extent that it was liable for an injury caused by negligent acts other than those which it knew or ought to have known of, by the exercise of reasonable diligence. If it was barely condemnable, the defendant may have been diligent and still ignorant of the fact. This modification in this instance is fatal. The master is not an insurer of the safety of his employes.

In support of our position that the court erred in modifying these instructions and in persistently keeping the idea before the jury in and by plaintiff's instructions and the modification of defendant's instructions, that the defendant was required to have absolutely safe way and appliances, see Bigelow on. Torts, p. 301; Pierce on Railroads, p. 370; Railroad Co. v. Wooley, 77 Miss. 927 (s.c., 28 So. 26); Clisby v. Mobile, etc., R. R. Co., 78 Miss. 937 (s.c., 29 So. 913); Kent v. Railroad Co., 77 Miss. 496 (s.c., 27 So. 620); Yazoo, etc., R. R. Co. v. Schraag, 84 Miss. 125 (s.c., 36 So. 193).

These authorities are conclusive on the proposition that the defendant was not required to have an absolutely safe track and machinery. It is only when the master "knows or ought to know his premises, his machinery or his apparatus are unsafe" that the servant can recover for injuries by their defects. This idea is constantly excluded by the court from the consideration of the jury in this case, not only by the instructions for the plaintiff, but by the...