New Orleans & N. E. R. Co. v. Jackson

• Decision Date: 02 November 1925
• Docket Number: 25140
• Citation: 105 So. 770,140 Miss. 375
• Parties: NEW ORLEANS & N. E. R. CO. v. JACKSON. [*]
• Court: Mississippi Supreme Court

105 So. 770

140 Miss. 375

NEW ORLEANS & N. E. R. CO. v. JACKSON. ^[*]

No. 25140

Supreme Court of Mississippi

November 2, 1925

Division B

APPEAL from circuit court, of Lauderdale county HON. C. C. MILLER, Judge.

Action by Grant Jackson against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial on question of damages.

Reversed and remanded.

Bozeman and Cameron, for appellant.

The court erred in instructing the jury that the plaintiff was injured as a result of the violation of the Safety Appliance Act of the Federal Government, and in directing the jury to award the plaintiff damages. The testimony wholly fails to show that when the plaintiff was injured, the car in question was either being "hauled" or "used," "on its line" by the defendant.

The prohibition of the Safety Appliance Act is that: "It shall be unlawful for any carrier subject to the provisions of this Act to haul, or permit to be hauled, or used on its line, any car subject to the provisions of this Act, not equipped, etc." Hence a carrier may have in its possession and in its repair yard a car not equipped as required by the Safety Appliance Act, without violating the Act.

Our point is that the car here in question was not being hauled or used on the line of the defendant at the time of plaintiff's injury. The movement was a merely incidental switching movement from one repair track to another, having exclusive relation to the work of repair; and was not, as we submit, the hauling or use of the car on the line of defendant, in violation of the Safety Appliance Act.

We have been unable to find any case holding that an incidental movement of a bad order car in a repair yard, for the purpose of "spotting," or spacing, in order that repairs might be more conveniently made, even the movement from one repair track to another, was a violation of the Safety Appliance Act.

The courts have held in some cases that a switching movement of a defectively equipped car might be a violation of the Safety Appliance Act, but in all such cases the switching movement was either a movement for a considerable distance; usually if not always, involving the use of the main line of the railroad, or in connection with the handling of cars which were being moved in commerce, and not for the purpose of repair. A typical and frequently cited case of this kind is Southern Ry. Co. v. Snyder, 205 F. 868; 124 C. C. A. 60.

Under the Safety Appliance Act it was the affirmative duty of the Alabama Great Southern Railroad, the carrier in possession of this car, when its defective appliances were discovered, to have the same repaired before hauling the car further, and before delivery to its connecting carrier, and the connecting carrier (the defendant in this case), and a perfect right to decline to receive the car for further carriage until it had first been repaired, and made to comply with the Safety Appliance Act. B. & O. S.W. R. Co. v. United States, 242 F. 420; 155 C. C. A. 196; United States v. L. & J. Bridge Company, 1 F. (2nd) 646 (C. C. A.). See also B. & O. R. Co. v. Hooven, 297 F. 919 (C. C. A.); McCalmont v. Penn. R. Co., 283 F. 736 (C. C. A.); L. & J. Bridge Co. v. United States, 249 U.S. 534; U. S. v. Northern Pacific R. Co., 293 F. 657 (C. C. A.).

The Act certainly does not prohibit a carrier from having in its possession or on its repair track a car not equipped, etc., as required by the Act, even though it be then an instrument of interstate commerce and under load. Indeed, it has long been held that the Act applies to cars, whether interstate or intrastate, "hauled" or "used" upon an interstate highway. T. & P. R. Co. v. Rigsby, 241 U.S. 33; 60 L.Ed. 874.

All of the cases which have held the Safety Appliance Act to apply to switching movements resulting in personal injury, which have come to our attention, may be readily distinguished from the case at bar, and we do not think that any one of them would be authority for holding that the Act should be applied in the case at bar, but, on the contrary, we submit that they all show that in the case at bar certain essential elements necessary to bring it within the Act are wholly lacking. For instance, see the Rigsby case, 241 U.S. 33, 60 L.Ed. 874; Southern R. v. U.S. 222 U.S. 20, 56 L.Ed. 72; Great N. R. Co. v. Otos, 239 U.S. 349, 60 L.Ed. 322; Delk v. St. Louis & S. Fed. R. Co., 220 U.S. 580, 55 L.Ed. 590.

The distinction between the Delk case and the case at bar is plain. After diligent search we have found no case that goes so far as to hold such an incidental movement of a car, all within the repair yards, to be a "hauling" or "use" of a car, within the terms of the Safety Appliance Act.

Is it a violation of the Safety Appliance Act to move a bad order car at all in the repair yards? As an extreme case, suppose a bad order car was standing on a repair track to be repaired. In order to get at the defective appliance it becomes necessary, or desirable, to move the car a distance of five or ten feet. An engine is attached and pulls the car this distance of five or ten feet--all on the same repair track. Can it be said that the railroad company "hauled or used this car on its line" in violation of the Safety Appliance Act?

Of course, a car may be "hauled" (using the word in its literal signification) on the repair track five feet or five miles; but was such an incidental movement of five or ten feet on a repair track, for convenience in repairing a car, contemplated by the Safety Appliance Act?

We earnestly submit, therefore, that in instructing the jury that this case was controlled by the Safety Appliance Act, and in giving the jury a peremptory instruction to assess damages in favor of the plaintiff, the court below committed a reversible error.

II. Verdict excessive, and based on passion and prejudice of the jury. The amount of the verdict is grossly excessive, and is not warranted by the testimony, but is the result of erroneous instructions as to the measure of the damages, and on the passions and prejudice of the jury, engendered by the improper argument of counsel, to which exception was duly taken.

Plaintiff's counsel (the district attorney) stated and argued to the jury that the law which the defendant violated (meaning the Safety Appliance Act) was the same as the law against murder and against rape, and that in fact the injury of the plaintiff was nothing but murder; and in arguing to the jury that they should give the plaintiff a good verdict, because lawsuits are expensive, and because the defendant railroad company made the plaintiff sue, and that Congress did not pass this law to help the plaintiff, but passed it because so many mothers' sons were being slaughtered by the railroad companies--more than were killed in the war--and they had to put a stop to it.

There was no evidence to support these statements of counsel. There was no intimation even in the testimony, or in the course of the trial, that the plaintiff was ever willing to accept of the defendant reasonable compensation for his injury; or that the defendant had refused to make a reasonable settlement with the plaintiff, or that the defendant railroad company "made the plaintiff sue." These remarks of counsel were highly improper and prejudicial to the defendant, and placed the defendant in an attitude before the jury of having maliciously murdered the plaintiff, and of then having forced him to sue for compensation.

If a negro switchman is entitled to ten thousand dollars as actual compensation for a broken leg, how much would the defendant have to pay for his death?

The instructions should certainly have been so given as to advise the jury that they could not, in estimating the damages to be awarded the plaintiff, allow him his full wages for the period beginning at the date of his injury and extending up to his trial, his "loss of time," some eighteen months, and at the same time award him damages for any loss of earning capacity, which necessarily began at the date of his accident and continued to the end of his expectancy. This is double damages, certainly for the eighteen months loss of time period.

In support of this proposition we cite the following cases, warranting reversal for excessive verdicts rendered under such conditions: Perkins v. Guy, 155 Miss. 153 (182-3); Newman Lbr. Co. v. Norris, 130 Miss. 751; Watts v. Espey, 101 So. 106; Brotherhood of Painters v. Trimm, 207 Ala. 587; Metropolitan Ins. Co. v. Carter, 102 So. 130.

M. V. B. Miller and Reily & Parker, for appellee.

I. The court rightfully decided that the Federal Safety Acts applied. It has been the uniform custom of the Federal courts to construe the Federal Safety Appliance Act broadly so as to accomplish the purpose intended. Johnson v. Southern Pac. Co., 49 L.Ed. 369; United States v. Chicago, M. & St. P. Ry. Co., 149 F. 486; Gray v. Louisville & N. R. Co., 197 F. 876; 2 Roberts Federal Liabilities of Carriers, 1266.

Quite a number of decisions of the Federal courts are cited by Roberts under this section, showing that the Federal courts have uniformly given this statute a broad interpretation, so as to accomplish its purpose, and have not permitted the contentions of the railroads to fritter away the statute that is "so highly meritorious, so generous in its purpose, so in harmony with the best sentiment of a humane people, and a progressive government, that it appeals strongly to the courts for its prompt and vigorous enforcement." U. S. v. Southern R. R. Co., 135 F. 129.

The car causing appellee's injury was received by the New Orleans & Northeastern Railroad Company, appellant, when it had not been properly equipped as provided by the Safety Appliance ...