New Orleans & N.E. R. Co. v. Benson, 33160

CourtMississippi Supreme Court
Writing for the CourtMcGehee, J.
Citation183 Miss. 171,183 So. 505
Decision Date10 October 1938
Docket Number33160
PartiesNEW ORLEANS & N.E. R. Co. v. BENSON

183 So. 505

183 Miss. 171

NEW ORLEANS & N.E. R. Co.
v.
BENSON

No. 33160

Supreme Court of Mississippi

October 10, 1938


Division B

Suggestion Of Error Overruled November 7, 1938.

APPEAL from the circuit court of Lauderdale county HON. A. G. BUSBY, Judge.

Suit under the Federal Employers' Liability Act by George W. Benson against the New Orleans & N.E. R. Company, for personal injuries. From a judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

[183 Miss. 172] Bozeman, Cameron & Bozeman, of Meridian, J. Blanc Monroe, of New Orleans, La., and Sidney S. Alderman, of Washington, D. C., for appellant.

The case is controlled by the Federal Employers' Liability Act, and the common law of negligence as defined and applied by the federal courts.

Favre v. L. & N. R. Co., 178 So. 327; Y. & M. V. R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817; N. O. & N.E. R. Co. v. Penton, 135 Miss. 571, 100 So. 521; M. & O. R. Co. v. Clay, 156 Miss. 463, 125 So. 819; N. O. G. N. R. Co. v. Branton, 167 Miss. 52, 146 So. 870; Employers' Liability Cases, 223 U.S. 1, 56. L.Ed. 327; N. O. & N.E. v. Scarlet, 249 U.S. 528, 63 L.Ed. 572; Northwestern Co. v. Bobo, 290 U.S. 499, 78; L.Ed. 462.

Negligence, as recognized in federal decisions, is the basis of the action, and the burden is on the plaintiff to show such negligence by tangible and satisfactory testimony, unaided by surmise or speculation; mere scintilla is not enough. [183 Miss. 173]

Favre v. L. & N. R. Co., 178 So. 327; Y. & M. V. R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817; N. O. & N.E. R. Co. v. Penton, 135 Miss. 571, 100 So. 521; M. & O. R. Co. v. Clay, 156 Miss. 463, 125 So. 819; N. O. G. N. R. Co. v. Branton, 167 Miss. 52, 146 So. 870; Employers' Liability Cases, 223 U.S. 1, 56 L.Ed. 327; N. O. & N.E. v. Scarlet, 249 U.S. 528, 63 L.Ed. 572; Northwestern Co. v. Bobo, 290 U.S. 499, 78 L.Ed. 462; Patton v. T. & P. R. R. Co., 179 U.S. 658, 58 L.Ed. 361; C. M. & St. P. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 104; A. T. & S. F. R. Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896; A. T. & S. F. R. R. Co. v. Ambrose, 280 U.S. 486, 74 L.Ed. 562; A. T. & S. F. R. Co. v. Saxon, 284 U.S. 458, 76 L.Ed. 397; C. G. & W. R. Co. v. Rambo, 298 U.S. 99, 80 L.Ed. 1066; Universal Co. v. Taylor, 178 Miss. 143, 172 So. 756, 174 Miss. 358, 164 So. 3; Y. & M. V. R. Co. v. Lamensdorf, 178 So. 80; Small Co. v. Lambourn, 267 U.S. 248, 69 L.Ed. 597; Gunning v. Cooley, 281 U.S. 90, 74 L.Ed. 720.

Plaintiff below failed to show that any member of the switching crew had knowledge of his position of peril, and, without such knowledge, "negligence," as recognized in the federal courts cannot be implied.

G. M. & N. R. Co. v. Collins, 151 Miss. 240, 117 So. 593; Aerfetz v. Humphreys, 145 U.S. 418, 36 L.Ed. 758; G. M. & N. R. Co. v. Wells, 276 U.S. 455, 72 L.Ed. 370; T. S. & W. R. Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; A. T. & S. F. R. Co. v. Wyer, 8 F.2d 30; Penn R. Co. v. Lutton, 29 F.2d 689; N. & W. R. Co. v. Collingsworth, 32 F.2d 561; Carfello v. D. & L. R. R. Co., 54 F.2d 475; Peterson v. L. Ry. & C. Co., 9 La. 714, 119 So. 759.

This accident happened in a switching yard, where conditions are constantly shifting, and where members of crews must look out for themselves, and plaintiff, an experienced switchman, assumed the risk of his injury.

Jackson v. So. Ry. Co., 241 U.S. 229, 60 L.Ed. 970; Boldt v. Penn. R. Co., 245 U.S. 441, 62 L.Ed. 385; [183 Miss. 174] C. & O. v. Nixon, 271 U.S. 218, 70 L.Ed. 914; C. & 0. v. Mihas, 280 U.S. 102, 74 L.Ed. 207; Gilmer v. Y. & M. V. B. Co., 4 F.2d 963; Flannery v. New York R. Co., 29 F.2d 18; Reynolds v. N. Y. R. Co., 42 F.2d 164; N. & W. R. Co. v. Kratzer, 37 F.2d 522; Penn. R. Co. v. Bourke, 61 F.2d 719; G. T. R. Co. v. Reid, 42 F.2d 403; Jackson v. C. M. & P. R. Co., 66 F.2d 688; Thompson v. Downey, 78 F.2d 487; McClellan v. Penn. R. Co., 62 F.2d 61; Swinney v. Sou. Ry. Co., 89 F.2d 437; Farve v. L. & N. R. R. Co., 178 So. 327.

The customs and practices relied on by plaintiff were not shown with sufficient certainty to satisfy the rule applied in federal courts.

McClellan v. Penn. R. Co., 62 F.2d 61; C. M. & St. P. v. Lindeman, 143 F. 946.

Duty to line the switch (failure of performance of which caused the damage) rested, primarily, on plaintiff, and, in any event, only secondarily on other members of crew, and plaintiff's negligence bars recovery.

G. N. R. Co. v. Wiles, 240 U.S. 444; Frese v. C. B. & Q. R. Co., 263 U.S. 1; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; U. V. R. Co. v. Caldine, 278 U.S. 139, 73 L.Ed. 224; Cain v. R. R. Co., 75 F.2d 103; L. & N. R. Co. v. Davis, 75 F.2d 849.

The "negligence" on which plaintiff sought to rely in the court below was not defined in the instructions given plaintiff.

Hines v. McCullers, 121 Miss. 666, 83 So. 734.

There is fatal variance between the case as set out in the declaration and that developed by the evidence.

Chism v. Alcorn, 71 Miss. 506, 15 So. 73; Sou. Ry. Co. v. Montgomery, 46 F.2d 990.

This court has, in a series of recent decisions, planted itself squarely on the proposition that testimony must comport with human experience, and must satisfy the rules of reason, if it is to form the basis of a jury verdict.

C. & G. v. Coleman, 172 Miss. 514, 160 So. 277; Universal Co. v. Taylor, 174 Miss. 358, 164 So. 3; [183 Miss. 175] Y. & M. V. R. R. Co. v. Lamensdorf, 178 So. 80; Y. & M. V. R. R. Co. v. Skaggs, 179 So. 275; Teche Lines v. Bounds, 179 So. 747.

Circumstantial evidence must exclude the possibility of other inferences than that sought to be drawn therefrom, before it can be made the basis of a jury issue, when it is contradicted by the positive testimony of a witness. Cunningham positively stated that he did not see Benson's signal and did not acknowledge it. That statement is challenged, if at all, only by two movements Benson claims to have seen Cunningham make--one with his head and the other with his hand. Cunningham's testimony, therefore, stands unchallenged, save for the inference plaintiff seeks to draw from the two motions he claims he saw Cunningham make. In reality, therefore, this positive testimony is sought to be contradicted only by these circumstances and the inferences fairly to be drawn therefrom.

Penn. R. Co. v. Chamberlain, 288 U.S. 333, 77 L.Ed. 819; Mutual Life Ins. Co. v. Zimmerman, 75 F.2d 758; A. T. & S. F. Co. v. Toops, 281 U.S. 351; N. Y. C. R. Co. v. Ambrose, 280 U.S. 486; C. M. & St. P. R. Co. v. Coogan, 271 U.S. 472; Patton v. T. P. Ry. Co., 179 U.S. 658.

How can it possibly be argued that the plaintiff has met the burden assumed in his brief of showing that this small space between scrap bin and the track was used solely and exclusively for toilet purposes, and that no other places were so used. Both our adversaries and ourselves have recognized in the briefs, and throughout, that it is not sufficient to show that this spot was one of the spots so used, but the evidence must go further and show that it was the sole and only spot. Plaintiff bottoms his case on the proposition that the dedication of this spot for toilet purposes was so exclusive, so universal, so well known and so entirely beyond controversy that every single man in that portion of the yards was charged with notice that if any man departed from duty [183 Miss. 176] for such purposes, he had gone certainly to that spot. On no other basis has plaintiff attempted to charge Cunningham with knowledge that plaintiff went to that very spot when he left his post of duty.

The real fact is that Benson converted a perfectly safe place into an unsafe place by the method of use to which he put it. This court has recently held that such a course of conduct will not support a verdict for damages.

Farve v. L. & N., 178 So. 327.

Reily & Parker, of Meridian, for appellee.

The appellant's contention being that there was no duty of care until the engine foreman knew that the plaintiff was in a position of danger, and that it was error to instruct the jury that there could be liability based upon that knowledge of danger that could and would have been acquired by the exercise of reasonable care; and it is the contention of the appellee that the duty of care attaches when the operator knew or should have known that the plaintiff was in a position of danger, and we do not think that there is any conflict in the authorities in...

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1 practice notes
  • Hopper v. Hopper, 33345
    • United States
    • United States State Supreme Court of Mississippi
    • October 10, 1938
    ...is pending. 1 R. C. L., sec. 21, p. 882; Lane v. Lane, 26 App. D.C. 235, 6 Ann. Cas. 683; Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99, 12 [183 So. 505] L.R.A. (N.S.) 820, 125 Am. St. Rep. 654; Hall v. Hall, 77 Miss. 741, 27 So. 636; Duxstad v. Duxstad, 16 Wyo. 396, 94 P. 463, 15 Ann. Cas. 22......
1 cases
  • Hopper v. Hopper, 33345
    • United States
    • United States State Supreme Court of Mississippi
    • October 10, 1938
    ...is pending. 1 R. C. L., sec. 21, p. 882; Lane v. Lane, 26 App. D.C. 235, 6 Ann. Cas. 683; Mosher v. Mosher, 16 N.D. 269, 113 N.W. 99, 12 [183 So. 505] L.R.A. (N.S.) 820, 125 Am. St. Rep. 654; Hall v. Hall, 77 Miss. 741, 27 So. 636; Duxstad v. Duxstad, 16 Wyo. 396, 94 P. 463, 15 Ann. Cas. 22......

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