Robertson v. Yazoo & M. v. R. Co.

• Decision Date: 13 May 1929
• Docket Number: 27615
• Parties: ROBERTSON v. YAZOO & M. v. R. CO. et al
• Court: Mississippi Supreme Court

122 So. 371

154 Miss. 182

ROBERTSON v. YAZOO & M. v. R. CO. et al

No. 27615

Supreme Court of Mississippi

May 13, 1929

(Division A.)

1. EVIDENCE. It is common knowledge no spark arrester permitting escape of smoke from railroad engine would keep back cinder size of sharp end of lead pencil.

It is common knowledge that no spark arrester that would permit the unobstructed escape of smoke from railroad engines would keep back a cinder of the size of the sharp end of a lead pencil.

2 RAILROADS. Railroad held not negligent where very small cinder from engine entered plaintiff's eye.

Injury sustained by plaintiff when cinder the size of sharp end of a lead pencil entered his eye could not be charged to any negligence on part of railroad company, since it is common knowledge that no spark arrester that would permit unobstructed escape of smoke from engine would keep back cinder of size that entered plaintiff's eye.

3. MASTER AND SERVANT. Statute requiring street car companies to equip cars with vestibules to protect employees against cold did not apply where motorman sustained injury when cinder entered eye (Hemingway's Code 1927, section 9184).

Hemingway's Code 1927, section 9184, requiring street car companies to equip cars with completevestibules and provide some means of heating them so as to thoroughly protect employees from cold and inclement weather, held not to apply so as to make street car company liable, where cinder from railroad engine entered motorman's eye, causing loss cf sight of such eye.

Division A

APPEAL from circuit court of Warren county.

HON. E L. BRIEN, Judge.

Action by Alonzo C. Robertson against the Yazoo & Mississippi Valley Railroad Company and another. Plaintiff recovered judgment for one dollar, and he appeals, and defendants file cross-appeal. Reversed and rendered.

Judgment reversed.

Henry, Canizaro & Henry, Thames & Thames and Brunini & Hirsh, all of Vicksburg, for appellant.

We contend that Hemingway's Code, section 9184, requiring street car companies to equip cars with complete vestibules and provide some means of heating them, so as to thoroughly protect employees from cold and inclement weather, applies in this case so as to make street car company liable where cinder from railroad engine entered motorman's eye, causing loss of eye, and that the negligence of the defendants was fully established by the plaintiff's testimony to the satisfaction of the jury, when he showed that the engine emitted sparks in large, unusual and unnecessary quantities. Texarkana & Ft. S. Ry. Co. v. O'Kelleher, 51 S.W. 54; Louisville & N. R. Co. v. Roberts, 187 Ky. 192, 218 S.W. 713; Wiedmer v. New York Elevated Railway Co., 114 N.Y. 462, 21 N.E. 1041; St. Louis R. R. Co. v. Parks, 97 Texas, 131, 76 S.W. 740; Batte v. St. Louis R. R. Co. (1917), 131 Ark. 568, 199 S.W. 907; Philadelphia Railway Co. v. Young (1898), 62 U.S. 33, C. C. A. 251, 90 F. 709; Atherton v. London & N.W. R. Co. (1905), 21 Times L. R. (Eng.) 671, 93 L. T. (N. S.) 464.

Hirsh, Dent & Landau, of Vicksburg, for appellees; H. D. Minor and C. N. Burch, of Memphis, Tenn., of counsel.

Defendants entitled to a directed verdict. The uncontradicted evidence discloses that if injury was inflicted, it was by a spark or cinder about the size of the sharp end of the lead in an ordinary lead pencil. No negligence shown by the emission of such spark or cinder. Impossible to operate locomotives without the emission of such sparks or cinders and therefore there is no liability against either of the defendants.

Miss. Cotton Oil Co. v. Smith et al., 48 So. 735; Louisville & Nashville R. R. Co. v. Jones, 134 Miss. 62; Owens v. Southern Railway Co., 145 S.E. 560; Carter v. Lumber Co. (N. C.), 39 S.E. 828; Bradley v. Coal Co., 169 N.C. 255, 85 S.E. 388; Davis v. R. R., 170 N.C. 582, 87 S.E. 745, Ann. Cas. 1918A, 861; Patten v. United Life & Acc. Ins. Ass'n, 133 N.Y. 450, 31 N.E. 342; Sovereign Camp Woodmen of the World v. Grandon, 64 Neb. 39, 98 N.W. 448.

An instruction assuming negligence to exist on a sharply controverted question of fact is erroneous.

Griffin v. Griffin, 93 Miss. 651, 49 So. 945; Reed v. Railroad Co., 94 Miss. 639, 47 So. 670; Godfrey v. Light Co., 101 Miss. 565, 58 So. 534; Railroad Co. v. Harris, 108 Miss. 574, 67 So. 54.

The only statute in this state with reference to vestibules on street cars is section 9184 of Hemingway's 1927 Code.

The statute was erroneously invoked and this constitutes reversible error.

A. & V. Ry. Co. v. Cox, 106 Miss. 33, 63 So. 334.

Before the plaintiff was entitled to recover any sum it was necessary for him to allege and prove some negligence.

Thompson v. I. C. R. R. Co., 105 Miss. 636, 63 So. 185; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Woodland Gin Co. v. Moore, 103 Miss. 447, 60 So. 574; White v. Rand, 123 S.E. 85; Richardson v. Southern Surety Co., 139 S.E. 839.

The court erred in refusing this instruction:

"The court instructs the jury for the defendant, the Yazoo & Mississippi Valley Railroad Company, that if you believe from the evidence that no spark arrester will totally prevent the emission of sparks and cinders, or that such spark arrester as will totally prevent the emission of sparks is impracticable, and if you further believe from the evidence that the alleged injury, if any, to plaintiff's eye, was from one of said defendant's locomotives pulling a train, between the hours of 9 A. M. and 11:30 A. M. on the morning of February 2, 1924, and if you further believe from the evidence that said locomotive emitting such sparks or cinders, if any, was at that time such a locomotive as was in common use and was of approved pattern, and in reasonably good repair, and that the equipment thereof for the prevention of the emission of sparks or cinders, was at that time of the character in common use and of approved pattern, and in reasonably safe repair, and that said locomotive was carefully handled by a competent engineer, then you must return a verdict for the said defendant, the Yazoo & Mississippi Valley Railroad Company, notwithstanding that you may further believe from the evidence that the plaintiff may have received injury to his eye from a spark or cinder which caused the loss of the vision thereof."

Yazoo & Mississippi Valley Railroad Company v. Washington, 113 Miss. 105, 73 So. 299; Railroad v. Jones, 134 Miss. 62.

Argued orally by John Brunini and James D. Thames, for appellant, and by R. L. Dent, for appellees.

OPINION

SMITH, C. J.

The appellant lost the sight of one eye, and, claiming that it was caused by an injury inflicted on him by the negligence of the appellees, sued them for damages therefor. He recovered a judgment for one dollar, and has appealed therefrom. The appellees...