Nichols v. Gulf & S.I.R. Co.

• Citation: 36 So. 192,83 Miss. 126
• Parties: SYLVESTER NICHOLS, ADMINISTRATOR v. GULF & SHIP ISLAND RAILROAD COMPANY
• Decision Date: 16 November 1903
• Court: United States State Supreme Court of Mississippi

36 So. 192

83 Miss. 126

SYLVESTER NICHOLS, ADMINISTRATOR v. GULF & SHIP ISLAND RAILROAD COMPANY

Supreme Court of Mississippi

November 16, 1903

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

Sylvester Nichols, administrator of the estate of Jack Nichols deceased, appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there.

The suit was for the alleged wrongful killing by the railroad company of plaintiff's intestate one Captain Jack Nichols, a ship carpenter by trade, who was in the Confederate States Navy and served during the Civil War 1861-1865, with Admiral Semmes, on board the Confederate States steamers, the Sumter and the Alabama. At the time of his death, November 7, 1901, decedent was upon a pier of defendant company extending for a mile from the shore out into the sea, and he was near its extreme sea limit. It was controverted in the case whether he was a licensee or a trespasser upon the pier; however this may have been, he was killed by being crushed between two railroad cars. These cars had been left standing quite near each other upon a railroad track on the pier which passed within two or three feet of a house, called a hoist house, in which was located the machinery used in operating derricks and other appliances, in transferring freights from the cars to ships and from ships to the cars. The cars stood along side of the house and the opening between them was within fifteen feet of one of its doors. Nichols, the decedent, was in the house, and some of the witnesses thought "a little groggy." As an engine approached the cars for the purpose of moving them, he was seen to run sideways between the cars just about the time the engine came in contact with one of them, and was caught between the drawheads and fatally injured. After the injury and before his death decedent stated to several persons that he heard the engine coming but supposed he had time to run out of the house and pass safely between the cars before they would be reached by the engine, and attempted to do so.

Before the beginning of the trial the defendant demanded that the plaintiff be required to give security for costs, but the court below overruled the application and adjudged that the plaintiff had the right to proceed in the case without giving security for costs. After the trial had been entered upon and nearly all of plaintiff's evidence introduced, the plaintiff asked and obtained leave of the court to give the cost bond mentioned in the opinion of the court, which bond was given.

At the conclusion of the evidence the defendant asked for a peremptory instruction in its favor, but the court below refused it. Many instructions were then given for each of the parties. The jury returned a verdict for defendant and judgment thereon was accordingly rendered. The plaintiff's motion for a new trial was overruled, and he appealed to the supreme court.

Judgment amended and affirmed.

Harper & Potter, for appellant.

Captain Nichols was upon the pier by the express solicitation of an agent of the railroad company. He was not an employee of appellee, and did not have a contract with it at the time of his injuries, although his business upon the pier was with reference to obtaining employment.

The railroad company had a train of cars, without a locomotive attached, placed upon the hoist house track along by the side of the hoist house. This train was composed of two or three box cars that extended as far as the boiler room door, where there was an opening or passage way, and then came four or five flat cars. The proof was overwhelming that it was the custom of the company to leave this opening near the door in order that employees and others might pass through it into and from the hoist house. The testimony showed beyond question that a great number of persons, other than employees of the railroad company, from curiosity or otherwise, were constantly on the pier, and that they were in the habit of passing through the openng left between the cars. The only drinking water on the premises for the employees, and which was frequently partaken of by licensees, was in the hoist house, and it was shown conclusively that whoever, being out upon the pier, wanted a drink of water had to pass into the hoist house where drinking water was supplied from a pipe leading from an artesian well. The leaving of the opening between the cars was an invitation not only to employees but to all persons on the pier to cross through the narrow space left there for that purpose.

Every witness in the case, except Dalgreen and Ates, were employees of the railroad company. It was shown that Nichols was caught between the bumpers at the opening and that the opening was left for persons to use as a passage way. Of course the appellant made out a prima facie case of negligence, under Code of 1892, § 1808. This prima facie case being made out, it devolved upon the railroad company to exculpate itself from the charge of negligence by satisfactory and clear proof, but this it failed to do. On the other hand considering the whole evidence, the negligence of the railroad company is manifest. The custom of leaving the opening as a passage way, upon all the testimony, remained unshaken. It was impossible for the engineer or fireman, after seeing a person who might undertake to go through the opening from the hoist house to stop the train. In fact it was impossible for them to see the opening when a train came in on the track and in the manner which the one did on the occasion when Captain Nichols received his fatal injuries. It was negligent for the railroad company to leave this opening for a public pass way at such a place that those who were operating the train could not see it, and this negligence stood quite uncontradicted by any witness who testified in the case.

Besides, Davis, one of the brakemen of the train by which Nichols was killed, did not testify at all, and surely the railroad company cannot be held to have removed all presumption of negligence when it failed to introduce Davis and show that he performed his entire duty on the occasion in question; in fact it was the duty of Davis to run ahead of the moving cars and be on the lookout for persons about to go through the pass way, and to give warning of danger, but Davis did not tell us that he performed that duty, and the other employees of the defendant who undertook to swear about the occurrences but poorly accounted for Davis' conduct on the occasion in question.

The cases of Railroad Co. v. Thompson, 64 Miss. 558; and Nichols v. Railroad Co., 85 Va. 99, are decidedly in point, and are both most favorable to the contention of the appellant. In the Thompson Case, supra, the opening was usually from seven to ten feet wide, but on the day of Thompson's injury, it had been reduced to two or three feet, and the crossing or space left between the cars was not upon a public highway or crossing. In the Virginia Case, above cited, the party was injured while going to the station and undertaking to cross the track between cars that were only eighteen inches apart, and was caught and killed by the sudden backing of the train. When he reached the track he could not see the engine and had no notice that the cars were about to start. In both cases it was held that the plaintiffs were not guilty of contributory negligence in undertaking to pass between the cars when the space through which they attempted to go was so narrow. The only question in this case, or the only one that ought to have been submitted to the jury, was the one of Captain Nichol's contributory negligence.

It was undertaken to be shown that Nichols was intoxicated and to prove his contributory negligence by his statements after he received his injuries. All of his statements were flatly contradicted by the appellant's witness, Ates, the only witness in the case whose relationship to Captain Nichols was such as to make it at all reasonable that decedent would have disclosed the facts of the case within his knowledge to him if they were adverse. The jury had a right to disbelieve the witness Fairfield, whose testimony is contradicted by various other witnesses, and doubtless would have done so had not the court misled them by erroneous instructions.

The court below grievously erred, to the prejudice of appellant, in granting to appellee, its second, fourth, sixth, seventh, eighth, and twelfth instructions.

The second instruction given for defendant is in the teeth of the statute, Code of 1892, § 1808, which provides, that in all actions against railroad companies for damages to persons or property, proof of the injury inflicted by the running of locomotives or cars of such company shall be prima facie evidence of the want of reasonable care and skill on the part of the servants of the company in reference to such injury.

The second instruction tells the jury to find for the defendant unless plaintiff had satisfied them by a clear preponderance of the evidence that the defendant was guilty of negligence, and that by reason of such negligence Captain Nichols suffered the injury which resulted in his death.

The fourth instruction given for the defendant was erroneous because it states that the jury may put itself in the position of the parties, without reference to the evidence, and for the further reason that under the evidence in the case, the question of decedent's negligence should not have been submitted to the jury, as the prima facie case gave appellant the right of recovery on this branch of the controversy since it was not overturned by any proof whatever.

The sixth and seventh instructions given for appellant are upon the weight and effect of the evidence, and violate ...