Natchez & S. Ry. Co. v. Guice
| Decision Date | 13 October 1924 |
| Docket Number | 24265 |
| Citation | 101 So. 439,136 Miss. 307 |
| Parties | NATCHEZ & S. RY. CO. v. GUICE. [*] |
| Court | Mississippi Supreme Court |
1 RAILROADS. Injuries to person unloading car held actionable.
Where a carrier places cars on a service track to be unloaded by the consignee, and has knowledge that a person is inside the car for the purpose of unloading it, and moves the car to another service track, and in the switching movements violently causes an impact of unusual force, by which the person so unloading the car is injured, it is liable for the damages so caused to such person.
2 TRIAL. Refusal of instruction, inapplicable to or unsupported by evidence, not erroneous.
It is not error for the court to refuse an instruction not applicable to the evidence, or which is not supported by the evidence.
APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.
Action by John A. Guice against the Natchez & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Affirmed.
Ratcliff & Kennedy, for appellant.
The plaintiff charges, in effect, in his declaration as the basis of his right of recovery and of negligence on the part of the employees of defendant, that the defendant owed him the duty to notify him of the intended movement of cars from one switch track to another and to handle its cars with care and caution, etc., and that no notice was given him of any intention to move the cars from one service track to another and that the cars, including the one in which he was, was violently and negligently shunted or struck by the rapidly moving engine and cars being operated by employees of defendant, with full knowledge of his being in one of said cars. This is, we think, a fair statement of the allegation of the declaration in condensed form.
Now, let us apply these allegations to the evidence. We think it cannot be denied on the whole evidence: First, that at the beginning of this transaction Mr. Guice was located in a car consigned to him, which was located on the service track of Stein & Hicks, which was being unloaded under the supervision of Mr. Guice. Under the evidence it may be contended, though it is difficult for us to see how, that Mr. Guice was not notified of the intended movement of this car in which he was, on Stein & Hicks spur, but this is wholly immaterial, as it is certain that Mr. Guice knew by the actual facts of the movement that the car was being moved; whether he had been notified of the movement by the employees of the defendant is immaterial, nor is it material whether the cars were handled with reckless disregard of plaintiff's rights or his safety while on the Stein & Hicks spur, because it is perfectly clear from the evidence of Mr. Guice that he was not hurt by reason of anything done by the defendant's employees while on the Stein & Hicks spur, but he distinctly charges in his declaration that after he was transferred from the Hicks spur to the Rumble & Wensel spur, the employees of defendant violently shunted or bumped another car against the one in which he was, knocking him down and throwing cases of canned goods upon him, causing his injuries, and there is absolutely no dispute but that the place of his alleged injuries was on the Rumble & Wensel spur, at the north end thereof. It is our contention from this record that no negligence has been shown on the part of the company or its employees which would have occasioned or did cause the stacked cases in the car to fall.
The second instruction given for the plaintiff is error. There is nothing in the declaration or in the evidence to support this instruction, especially the latter part thereof, wherein it is stated: "And this is true even though the jury may further believe that said injury was caused by and in the spotting of said car or cars and not by other cars being pushed or backed against said car in which plaintiff was, after being spotted." Mr. Guice may have been injured during the spotting of the cars but if the cases, in the condition and position they were, fell over on him by the ordinary and unavoidable jostling or bumping of the cars, and without negligence of the crew, there could not be any liability on the part of the defendant. In other words, the latter part of this instruction should have informed the jury that if the injury occurred while spotting the cars, it must have been on account of the negligence of the employees. If it occurred from the unavoidable jostling in moving and spotting the cars, the defendant would not have been liable, and this instruction is for this reason fatally defective, and was not only misleading but a positive statement that the jury could find for plaintiff if Guice received injuries while the cars were being spotted, without regard to any negligence of the employees at the time.
Luther A. Whittington, for appellee.
The declaration charged that it was the duty of defendant to notify the plaintiff of the intended movement of the cars from one service track to another, but notwithstanding this duty, the defendant wholly failed to perform same in moving the cars from one track to another, and the declaration further specifically charged that after said cars had been placed on the Rumble & Wensel service track and while the plaintiff was in the...
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