St. Louis & S. F. Ry. Co. v. Bridges

• Decision Date: 06 January 1930
• Docket Number: 28197
• Parties: ST. LOUIS & S. F. RY. CO. v. BRIDGES
• Court: Mississippi Supreme Court

125 So. 423

156 Miss. 206

ST. LOUIS & S. F. RY. CO. v. BRIDGES

No. 28197

Supreme Court of Mississippi

January 6, 1930

Division B

Suggestion of Error Overruled February 3, 1930.

APPEAL from circuit court of Lee county HON. C. P. LONG, Judge.

Action by J. V. Bridges against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed in part, and in part reversed and remanded with directions.

Affirmed in part; reversed in part.

D. W. Houston, Sr. & Jr., of Aberdeen, J. W. Canada, of Memphis, Tenn., and E. T. Miller, of St. Louis, Mo., for appellant.

A suit in a state court under the Federal Employer's Liability Act is governed by the rule of the Federal courts that the negligence of the defendant is an affirmative fact which plaintiff must establish.

Nitroglycerin case (Parrot v. Wells), 15 Wall. 524, 537, 21 L.Ed. 206, 211; Patton v. Texas & P. R. Co., 179 U.S. 658, 663, 45 L.Ed. 361, 364, 21 S.Ct. 275; Looney v. Metropolitan R. Co., 200 U.S. 480, 487, 50 L.Ed. 564, 568, 26 S.Ct. 303, 19 Am. Neg. Rep. 627; Southern Railway-Carolina Division v. Bennett, 233 U.S. 80, 85, 58 L.Ed. 860, 862, 34 S.Ct. 566, 10 N.C. C. A. 853.

Plaintiff cannot build case on presumptions. Only presumptions of fact law recognizes are immediate, not remote, inferences from facts proved--not conjectures.

Manning v. Jno. Hancock Life Ins. Co., 100 U.S. 603-699, 25 L.Ed. 761 and 763; St. L. & S. F. R. R. Co. v. Dorman, 89 So. 70; Carlisle v. Central of Ga. R. Co., 62 So. 759; Southworth v. Shea, 30 So. 774-5; I. C. R. R. Co. v. Cathy, 12 So. 253-4 (Miss.); M. & C. R. Co. v. Zimmerman, 24 F. (2nd Series) 23.

Plaintiff assumes ordinary risks; and when obvious and known and appreciated, extraordinary ones, and those due to negligence of employer and fellow employers.

Toledo St. L. & W. R. Co. v. Allen, 276 U.S. 165, 72 L.Ed. 513; Aerkfetz v. Humphreys, 145 U.S. 418, 36 L.Ed. 758; Randall v. Baltimore, 109 U.S. 479, 27 L.Ed. 1003; Tuttle v. Detroit, 122 U.S. 189, 30 L.Ed. 1114; Boldt v. Pennsylvania Railroad Co., 245 U.S. 441, 62 L.Ed. 385; Jacobs v. Southern R. Co., 241 U.S. 229, 235, 60 L.Ed. 970, 976; Butler v. Frazee, 211 U.S. 459, 53 L.Ed. 281; D. L. & W. R. R. Co. v. Koski, L.Ed. Advance Sheets No. 7, for March 1, 1929, 234, 73 L. Ed.; C. & O. Ry. v. Nixon, 271 U.S. 218, 70 L.Ed. 914-915; Y. & M. V. v. Hullum, 119 Miss. 229, 80 So. 645; G. M. & N. R. R. Co. v. Collins, 117 So. 593; Carlo v. B. & L. E. R. Co., 143 A. 5 (Pa.); C., N. O. & T. P. R. v. Brown, 12 S.W.2d 381; Houpy v. Morgan's L. & T. R. Co., 119 So. 750 (La.); Peterson v. La. Ry. U. N. Co., 119 So. 759 (La.).

When defect, danger, and risk are obvious or apparent, employee is estopped from denying appreciation of danger.

C. B. & Q. R. Co. v. Shalstrom, 195 F. 725 and 728-9; Butler v. Frazee, 211 U.S. 459, 53 L.Ed. 281.

The verdict is excessive and so much so as to evince passion and prejudice.

2 Roberts F. Liab. of Carriers (2 Ed.), sec. 915, p. 1783; Seaboard Airline Ry. Co. v. Koenicke, 239 U.S. 352, 60 L.Ed. 324; C. & O. Ry. v. Kelly, 241 U.S. 485, 60 L.Ed. 1122 and 1123; Hinds v. Green, 125 Miss. 476-7 and 495, 87 So. 649; L. & N. v. Garnett, 129 Miss. 795-806-7, 93 So. 241; I. C. R. R. v. Welch, 52 Ill. 183, 4 Am. Rep. 593; C. & G. Ry. Co. v. White, 56 So. 574; A. & V. Ry. Co. v. Dennis, 128 Miss. 298, 91 So. 4; Williams v. Pickering Lbr. Co., 125 La. 1087, 52 So. 167; L. & G. N. v. Brice (Tex.), 111 S.W. 1094; I. & G. N. v. Shaugnessy, 81 S.W. 1026 (Texas); Ewing v. Stickney, 107 Minn. 217, 119 N.W. 802; Railroad v. Fredricks, 71 Ill. 294; Knock v. Tonopah & G. R. Co., L.R.A. 1915F, p. 3; T. & Ft. W. R Co. v. Hartnett, 33 Tex. Civ. App. 103, 75 S.W. 809; Struble v. Burlington, etc., Ry., 128 Iowa 158, 103 N.W. 142; Williams v. Pickering Lbr. Co., 125 La. 1087, 136 Am. St. 365; C. R. I & P. Ry. Co. v. Bastel, 100 Ark. 526, 140 S.W. 796; Chenoweth v. G. N. R. Co., 50 Mont. 481, 148 P. 339; Braxton v. W. J. & S. R. R., 144 A. 179.

Geo. T. Mitchell, of Tupelo, and Lake Hays, of Memphis, Tenn., for appellee.

Appellee has no issue to take with appellant on the point that the plaintiff originally has the burden of proof, but appellee denies that this case is based on presumptions of fact and that the jury had nothing to base their verdict upon except surmise, conjecture, speculation or guess.

Under the Federal Employers' Liability Act, negligently switching cars against an employee, or negligently failing to warn him of danger, is ground of liability.

Young v. Lusk, 187 S.W. 849; Graves v. G. & S. I. R. R. Co., 146 Miss. 130.

Plaintiff did not assume the risk or dangers of any unusual or extraordinary situations that might arise as the direct result of the negligence of his employer.

Cinn. Ry. v. McGuffey, 252 F. 25; Central R. R. Co. v. Colashurdo, 192 F. 901; McMullen v. Atchison, etc., Ry. Co., 191 P. 306; Smith v. Hines, 111 A. 761.

The verdict was not excessive.

St. L. & S. F. Ry. Co. v. Hayes, 136 Miss. 701; Miss. Central R. R. Co. v. Lott, 118 Miss. 816; Y. & M. V. R. R. Co. v. Dees, 121 Miss. 440; Looney v. N. & W. R. R. Co., 48 A.L.R. 816; Y. & M. V. R. R. Co. v. Putman, 118 U.S. 545; Bosher v. R. R. Co., 15 F.2d 388; Woods v. R. R. Co., 8 S.W. 922; Otos v. R. R. Co., 239 U.S. 349; R. R. Co. v. Anderson, 291 S.W. 590; Roeder v. R. R. Co., 165 N.Y.S. 167; Christman v. Union Ry., 200 N.Y.S. 800; Boyle-Ferral v. Haines (Ark.), 256 S.W. 43; Bissinger v. Sac. Lodge (Calif.), 203 P. 768; Dumphy v. N. & W. R. R. Co. (W. Va.), 10 A.L.R. 1152; Toledo C. & O. R. R. Co. v. Miller (Ohio), 140 N.E. 617; N. O. & N.E. R. R. Co. v. Snelgrove, 115 So. 394.

Argued orally by D. W. Houston, Sr., for appellant, and by Geo. T. Mitchell, for appellee.

OPINION

Griffith, J.

In the city of Memphis, appellant maintains and operates a large switchyard, called the Yale yard. This yard is what is known as a freight classification gravity yard, and is designed and used for breaking up incoming freight trains, and in assembling the several cars thereof into classified tracks, according to the ultimate destination of the respective cars. There are eighteen of such separate classification tracks, but for the purpose of this case tracks numbered eleven and twelve only are necessary to be particularly mentioned.

The general design of this yard is such that a switch engine on the rear will push the freight train along a main switch track up to a slight elevation, or hump, as it is termed, and an employee, called the "pin-puller," will at this hump detach the foremost car, whereupon the engineer will give the train a slight impulse or shunt sufficient to send the detached car over and beyond the hump at a speed of from three to five miles an hour, and the car thus shunted will run, by the impulse given and by gravity, down a grade of one and one-half per cent in the track after passing the hump until the intended classification track is reached, in which track the grade is only one-half of one per cent whereby the car slackens and in a short distance will come to a standstill.

The cars, in shunting and in detaching them, are spaced about seventy-five to one hundred feet apart, and, as they follow each other at approximately that distance apart, there is stationed, farther down the tracks, an employee, called the "short field man," whose duty it is to throw the switches on the main tracks, which switches are about seventy-five to eighty feet apart, so as to send each car, as it arrives, into the particular track to which it belongs. After the several cars get each into its own track there is another employee, called the "long field man," who follows such of them as may be necessary, and by the use of the hand brakes causes each to stop at or near the proper positions.

On the morning of August 12, 1928, at about three forty o'clock appellee was serving as the long field man. He was an experienced switchman, and had worked in this particular yard in that capacity since the opening thereof, about two or three months prior to that date. There was being broken up a train of twenty-five cars, of which three were to go into track eleven and five into track twelve. Two were to go into track eleven before the first of the five aforesaid was to go into track twelve. When the first car came into track eleven, some question arose between the appellee and the short field man whether there was room for the second track eleven car to enter and leave enough space for the first car for track twelve to clear. In order to cause a car to enter track twelve, a switch had to be thrown to turn the car off of and from track eleven. Appellee at this juncture went on top of the first car that had come down on track eleven, in order to attend the brakes on that first car, and while thus engaged the second car for track eleven came at the rate of about four miles per hour and moved up in contact with the said first car. The next car due was one which was intended for track twelve, and which, as stated, should have been turned into track twelve by the throwing of a switch in track eleven. In order to throw such a switch, however, there must be a space between the cars sufficient after one has passed to allow the switchman to complete the operation of throwing the switch before the next car arrives. But, when the switchman attempted to throw the switch on this occasion to turn the track twelve car into that track, he discovered that this car was traveling at such an unusual and high rate of speed that it had, when it arrived at the switch, nearly caught up with the car ahead of it, as a result of which the short field switchman was unable to throw the switch, and the said rapidly moving car ran on down track eleven, and crashed into the car which was then...