Southern Ry. Co. v. McLellan

• Decision Date: 16 June 1902
• Citation: 80 Miss. 700,32 So. 283
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY IN MISSISSIPPI v. JESSE MCLELLAN

32 So. 283

80 Miss. 700

SOUTHERN RAILWAY COMPANY IN MISSISSIPPI v. JESSE MCLELLAN

Supreme Court of Mississippi

June 16, 1902

FROM the circuit court of Montgomery county. HON. A. T. ROANE Special Judge.

McLellan appellee, was plaintiff in the court below; the railway company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts were: Jesse McLellan, appellee, a young man about 20 years old, was employed by appellant as a flagman on one of its local freight trains, and had been so employed about two and one-half months when the accident for which this suit is brought happened. On October 31, 1900, this train got into Greenville at night, and got orders there to go out again that night. On its trip out, the train stopped at Huntington switch, a small station near Greenville, to take from the switch there some cars. In obedience to orders of the conductor of this strain, appellee assisted in making the switch, and the cars were brought from the switch to the main line; the switch was closed, and appellee then closed a "knuckle" on the rear car, and gave the back-up signal, and proceeded on the outside of the rails, along the side of the roadbed, to make the coupling to the caboose which had been left on the main line. It was night, and while thus going along the track he stumbled on some obstruction fell, and was thrown upon the track, and had both his hands crushed so that they had to be amputated. Appellee testified describing the accident: "In backing up, I gave the back-up signal, and stepped on the rock with my left foot and that threw me under the train; that is, my side under the left wheel." He also testified that the rock or piece of slag was, as near as he could get at it, very near as large as his head, at least as big as his double fist; that it was about a foot from the end of the cross ties. The evidence showed that a large number of pieces of slag had been lying for some time near the track at the place of the accident. There was a verdict and judgment for plaintiff for $ 20,000. Defendant's motion for a new trial was overruled. The errors assigned and other facts are indicated by the opinion of the court, which contains a further statement of the facts.

Reversed and remanded.

Catchings & Catchings and S. M. Roane, for the appellant.

The defendant should have been allowed to prove that slag was used as ballast by other responsible railway companies. There is no obligation resting upon-railroad companies to use the best ways and appliances. The true test in this case was: Was the roadway reasonably safe, or could the result complained of have been anticipated? 97 Ala. pp. 240, 251; 3 Elliott on Railroads, sec. 1263; Atchison, etc., R. R. Co. v. Alsden, 47 Ill. 200. The defendant should also have been allowed to prove that there had never been an accident to an employe in coupling or making switches at the point in question, and no employe had ever stumbled there, either in the daytime or at night. Watson on Dam. Per Inj., p. 199; Field v. Davis, 27 Kan. 400; Fletcher v. Bal. R. R. Co., 168 U.S. 135.

The admission of this evidence would have had the effect of rebutting any inference of negligence. The defendant had no reason to apprehend an accident like the one in question, the arrangements made being such as experience had up to that time shown to be reasonably safe and suitable and sufficient to meet the requirements of its duty. Watson on Dam. Per. Inj., pp. 201, 202, 203; Wabash R. R. Co. v. Locke, 112 Ind. 404; Crocheron v. North, 56 N.Y. 656.

There was no allegation in the declaration that the extra duties required of plaintiff or the lack of a sufficient number of hands contributed to plaintiff's injuries. The admission of evidence on this head had the effect of creating a false issue and also of prejudicing the minds of the jurors against the defendant. The evidence should have been excluded on defendant's objection.

The court below also erred in allowing the plaintiff, over defendant's objection, to state that he was poor. Watson on Dam. Per. Inj., p. 736; Railroad Co. v. Roy, 102 U.S. 451; Barbour Co. v. Horn, 48 Ala. 566; Railroad Co. v. Binion, 107 Ala. 645; Shea v. Potero, 44 Cal. 414; Malone v. Hawley, 46 Cal. 409; Chicago v. O'Brennan, 65 Ill. 160;; Railroad Co. v. Power, 74 Ill. 341; Delphi v. Lowery, 74 Ind. 520; Parsons v. Lindsay, 26 Kan. 426; Shaw v. Barton, etc.., Corp., 8 Gray (Mass.), 45; Manion v. Hogan, 9 App.Div. (N. Y.), 98; Schwanger v. Brooklyn, 45 N.Y. s. P., 889; Alberto v. New York, etc., R. R. Co., 118 N. Y.,77; Gallion v. Laur, 55 Ohio St. 392; Penn. R. E. v. Brooks, 57 Pa. 339; Laing v. Colder, 8 Barr. (Pa.), 479; Missouri, etc., R. R. Co. v. Lyde, 57 Tex. 505.

The court erred in excluding the statement of the appellee to Dr. Toombs, that nobody was to blame but himself. This was not an opinion in the sense in which that term is used in the law books. It was a declaration by the appellee against his own interests. In making it he was necessarily basing it upon facts within his knowledge. If the court is necessarily bound to accept as the truth the story told by him on the witness stand, then the admission of his declaration could not have affected the case. But suppose he did not state the facts as they occurred, and suppose that there were facts undisclosed by him, which would show that he alone was to blame; in that event his declaration would become important. Suppose it to be true, as testified by the witness, Stensbery, that the appellee gave the signal to back, and then while the cars were moving, stepped in behind them to open the knuckle, and that in attempting to get out he stepped on the end of a cross tie or on a piece of slag between or just at the end of the cross tie and fell under the cars. Certainly in that case, he alone would have been to blame; and it may be that is how the accident occurred and that those were the facts in his mind when he made this declaration; or suppose that he was walking too near the end of the cross ties and stepped on a piece of slag between them, or just at the end, and stumbled and fell under the cars. In that event, clearly, he alone would have been to blame. Now, notwithstanding his story upon the witness stand, it may be that he was injured in some such way. If his declaration had been allowed to go to the jury, they would have been fully justified, if they had chosen to do so, in drawing the inference from the testimony of Stensbery that he had gone behind the cars while they were in motion, and in the hurry to extricate himself, stumbled over a piece of slag between the ties or at their end. Thus the court will see that his declaration might have been based upon facts, which, if allowed fairly to go to the jury, would have shown that he alone was to blame. By excluding this declaration, the jury was compelled to decide between his positive statement that he was walking along the side of the cars when he stepped upon a piece of slag and the inferential statement of the witness, Stensbery, that he had gone behind the car while in motion and tripped as he was extricating himself. If Stensbery's statement had been bolstered up by the declaration that plaintiff alone was to blame, it is just as likely as not that the jury would have found that he alone was to blame and that the company was not liable.

Hill & Sisson, for appellee.

It is assigned for error that the witness, Dr. Toombs, was not permitted to state that appellee said to him that his injury was "a pure accident; that he blamed nobody," etc. Our contention is that this is an opinion, a conclusion, and not competent.

Dr. Toombs has already testified that appellee told him how it occurred: "That he had given the back-up signal, was walking along the side of the track, stumbled over something, fell, and was run over by the ears and injured." This was competent, because it was a statement of facts.

Appellant had the full benefit of appellee's statement of how the injury was caused; it was made to Conductor Elliott at the very time and place and repeated to him in the waiting room of the depot at Greenville; it was also made to George Stensbery, a brakeman, at the time and place of the injury. Then, some months afterwards, in Winona, one Mr. Lacy, a lawyer for appellant, had the statement repeated to him and reduced it to writing.

Dr. Toombs states that it is his duty, when called to see a person injured by the railroad, to first get his statement of how the injury was caused, reduce this to writing, and report to his employer. He observed the rule in this case. After finding the young man in a deplorable condition, both arms crushed and mangled, he put him on the witness stand before he did the operating table, and got his account of the injury. Every admission against interest is competent, but we submit that it should be an admission of fact, not an admission of an opinion or a conclusion.

If appellee had made an admission of fact against his interest, and then added, by way of conclusion, that the railroad was wholly to blame, and that his injury was caused by the carelessness of the railroad; would that have been admissible against appellant? Could we have had that given as the other part of the same statement?. This court has already announced that where part of a statement is competent and part incompetent, the "wheat must be separated from the chaff." Lipscomb v. State, 75 Miss. 559; 53 Miss. 258; 53 Miss. 171; 40 Miss. 765; 69 Miss. 617; 69 Miss. 63; 1 Am. & Eng. Enc. Law (2d ed.), 714, and authorities cited.

Another assignment of error is that the verdict...