Pascagoula St. Ry. & Power Co. v. Brondum

• Decision Date: 08 March 1909
• Docket Number: 13,743
• Citation: 96 Miss. 28,50 So. 97
• Parties: PASCAGOULA STREET RAILWAY & POWER COMPANY v. CHRISTIAN BRONDUM
• Court: Mississippi Supreme Court

50 So. 97

96 Miss. 28

PASCAGOULA STREET RAILWAY & POWER COMPANY v. CHRISTIAN BRONDUM

No. 13,743

Supreme Court of Mississippi

March 8, 1909

FROM the circuit court of Jackson county, HON. WILLIAM H. HARDY Judge.

Brondum appellee, was plaintiff in the court below; the Street Railway & Power Company, appellant, a corporation, was defendant there. From a judgment in favor of plaintiff for $ 6,000, the defendant appealed to the supreme court.

The suit was for the alleged wrongful death of plaintiff's daughter, a child about six years old. The company operated an electric car line in Pascagoula, and its track along one of the streets passed in front of a public school house At the time of the injury a large number of the school children were playing near the school building, at the noon recess and in their games several of them, in chasing each other went beyond the school limits and into the street, among them appellee's daughter. While thus playing, and running in the street, she stumbled in attempting to cross the street car track, and fell in front of a rapidly approaching street car, and was run over by it and so seriously injured that she shortly thereafter died from her injuries. The street was straight, and the evidence showed that the motorman in control of the car could have seen any person in the street for a distance of from one hundred to two hundred yards ahead of him. The car, when it struck appellee's daughter, was running at a speed of seven miles per hour. It was shown that one of the car brakes was defective, that the motorman did not attempt to stop the car until within fifteen feet of the child, and that the car could not, in its defective condition, be stopped, even with proper effort, in a shorter distance than forty to forty-five feet. It was questionable whether or not the child stumbled over the railroad track but she fell while crossing the track. One of the rails of the track was elevated about three inches above the surface of the street, and the other rail was about one inch above the surface, in violation of the company's franchise, granted by the city, requiring the rails of the track to be flush with the street.

Affirmed.

Flowers & Whitfield and Ford, White & Ford, for appellant.

We think the court need go no further into this case than is necessary to consider the first instruction given for plaintiff. This instruction is based upon Code 1906, § 1985. It was given upon the idea that Code 1906, § 1985, applies to street railway companies; that such companies are included in the general words "railroad companies" employed by the statute. This statute was never intended to be used in actions against street railway companies, and we doubt whether it was ever attempted to be so used before. There are several reasons why it cannot be applied to street railways. In fact, the very life of the statute is jeopardized by extending it to such railways.

(a) In the first place, at the time this rule was adopted into the statutes of this state, the lawmakers knew nothing of street railways. The statute was first enacted in 1876. Laws 1876, p. 34. At the time there was not an electric street railway in the world. It was brought forward as Code 1880, § 1059, and appeared in the chapter on railroad corporations. It was after the adoption of the Code of 1880 that experiments with electricity began to furnish some promise of the use of it as a power to move cars along tracks. It was not until 1888, twelve years after the adoption of our statute, that the first electric railway was successfully operated. The section then came forward into the Code of 1892, appearing there as section 1808. At that time there was not an electric railway in the state of Mississippi, nor was there until several years later. So it appears that the legislature could not possibly have been aiming at any difficulties found to exist in the prosecution of suits against electric railway companies. There was no evil of that kind to cure. It can hardly be said that they were passing laws with respect to something they had never heard of. When that body used the words "railroad companies," they had in mind only such railroads as they were acquainted with; that is, they used the words with their ordinary meaning.

It is proper, in construing a statute of doubtful meaning, to look to the history of it and find out with what subjects the lawmakers had had experience at the time the law was passed. Funk v. St. Paul, etc., Railroad Co., 61 Minn. 435, 63 N.W. 1099, 29 L. R. A. 208, 52 Am. St. Rep. 608; Lincoln Street Railway Co. v. McClellan, 54 Neb. 672, 74 N.W. 1074, 64 Am. St. Rep. 736. These words "railroad companies" came into this law with a well-understood meaning. They referred to nothing but the ordinary commercial steam railroad company. The statute has not been changed in this regard since electric railways came into use in this state. The legislature of 1906 changed the section at the end so as to make it apply to passengers and employes. There was some change, too, in the act of 1876 when it was brought forward into the Code of 1880; but the words "railroad companies" have been preserved throughout. As far as our books show, this is the first attempt to apply it to street railway companies. It has seemed to be the opinion of the bar of the state that it was intended for use only in suits against the ordinary commercial railroads. The statute mentions "locomotives" and "cars." Street railways do not have locomotives. The use of this term is some evidence of the meaning of the statute. The authors of this statute had in mind the railroad train, made up of locomotives and cars.

(b) Words used in a statute by a legislature, whose members are taken from the people, are usually given their ordinary well-understood meaning. The words "railroad companies" are ordinarily understood to embrace those companies which own and operate great commercial lines of traffic, and which run over their lines trains of cars drawn by locomotives propelled by steam. While it may not be material what kind of power is used, the general idea is of a heavy locomotive drawing long trains over long distances at a high rate of speed. Our legislature separates the two kinds of carriers very clearly. When our legislature is dealing with street railways, it expressly says so. When it deals with railroad companies in general it does not expressly exclude electric railway companies, but assumes that they are not embraced within the general provisions dealing with railroads. Section 328 of the Code of 1906 authorizes the board of supervisors to permit "street railways" to be constructed along the public roads. Under chapter 24 of the Code of 1906 corporations for every lawful purpose may be chartered, except those for the operation of railroads and for the carrying on of insurance business. Street railway corporations may be chartered under this general chapter; but there is another and special provision in the chapter on railroads for the incorporation of railroad companies. In the chapter on privilege taxes railroads are taxed in one manner under section 3856 and street railways in another manner under section 3874. Chapter 118 of the Code deals with "Railroads." Practically every section of that chapter refers to steam railroads operated over long distances. In fact, no section up to 4059 has reference to street railways. Sections 4059 to 4062, inclusive, expressly refer to street railways. With the exception of these four, nothing in the said chapter affects the rights, duties, or liabilities of street railway companies. When we come to the chapter on "Revenue," we find, in section 4382, "each railroad company owning and operating a railroad" shall do certain things. But this is not regarded nor treated as having any application to street railways. The property of railroads in general is assessed by the state railroad commission, but that of street railroad companies is assessed by the county authorities; and then the railroad companies supervised by the state commission under chapter 139 of the Code are those operating the ordinary commercial steam railroads.

The legislature uses the word "railroad" all through the Code as referring only to the lines which are ordinarily referred to as railroads. In section 4884 we find some slight evidence that the legislature considered that there might be some uncertainty about the use of this term, or that street railways might be included in the general words "common carriers," and therefore thought it safe to expressly exclude street railways. But it is evidently too plain for argument that the established meaning of "railroad" is a line of iron rails stretching for long distances and over which steam locomotives draw long trains of cars at a great rate of speed, carrying freight and passengers from one part of the country to another. The power of the owners of the said property; the great money value of such property; the hazardous nature of the business of operating such property; the great number of people engaged in its operation; the necessity and constancy of its use by the public--these considerations call for special laws dealing with the rights, duties, and liabilities of railroad companies. In the public mind that class of transportation is entirely distinct and different from that conducted by the class known as street railways. In this state the two kinds of property are clearly distinguished in the mind of the people. When the legislature deals with street railways, it expressly says so. When it deals with the other class, it uses the general term "railroad."

(c) And our legislature, in using the words "railroad companies" with the meaning which excludes street railways, not only gave these words their ordinary...