Yazoo & M. V. R. Co. v. Washington

• Decision Date: 13 February 1917
• Docket Number: 18790
• Citation: 73 So. 879,113 Miss. 105
• Parties: YAZOO & M. V. R. CO. v. WASHINGTON et al
• Court: Mississippi Supreme Court

73 So. 879

113 Miss. 105

YAZOO & M. V. R. CO. v. WASHINGTON et al

No. 18790

Supreme Court of Mississippi

February 13, 1917

October, 1916

Division A

APPEAL from the circuit court of Warren county, HON. E. L. BRIEN Judge.

Suit by Luella Washington against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Mayes Wells, May & Sanders, for appellant.

The main question confronting the court, upon the threshold, is the proper interpretation of chapter 151, page 161, Laws of Mississippi 1912, "that each railroad corporation owning or operating a railroad in this state shall be responsible in damages to every person and corporation whose property may be injured or destroyed by fire communicated, directly or indirectly, by locomotive engines in use upon the railroad owned or operated by such railroad corporation, and each such railroad corporation shall have an insurable interest in the property upon the route of the railroad owned or operated by it and may procure insurance thereon in its own behalf for its protection against such damages."

The instructions requested by the plaintiffs invoking this statute, and given by the court, extend the operation of the statute to the suffering and death of plaintiffs' intestate, as well as to the damages for the destruction of the property.

The giving of said instructions for plaintiffs and the refusal of said instructions for defendant, can be accounted for only upon the theory that our said statute applies equally to persons and property, and to so apply the statutes necessitates writing into it what has been obviously omitted from it, and to revolutionize the law of liability for personal injuries resulting in death at the hands of railroad corporations in Mississippi.

The general rule of liability for fires caused by operation of railroads is stated in 11 Ruling Case Law, at page 961. This general rule has been recognized and followed generally by the courts of this country and by our own courts.

Prior to the enactment of the 1912 statute, supra, concerning the liability of railroad corporations for fires communicated from their engines, they were held not to be liable unless negligent, either in the equipment of their locomotive engines or in the operation thereof, and that such negligence must be the proximate cause of the damages sued for. The rule declared by our court, in the case of Railroad Company v. Fried, 81 Miss. 314, 33 So. 74, being substantially, that owners carry risks arising from the non-negligent use of its railroad by the company operating on the track. See, also Railway Co. v. Insurance Co., 82 Miss. 770, 35 So. 30.

The cases cited by the author or the text quoted supra, are all cases of damages to property. The statute has changed this rule as affecting property damages and has left the principle of liability as to damages resulting from personal injuries, or injuries resulting in death, exactly as it stood prior to the passage of the absolute liability statute, supra.

It then becomes important to note the principle governing the liability for personal injuries resulting in death, caused by fire, prior to the passage of this statute and this rule is stated in 3 Elliot on Railroads, section 1247, page 576.

Thus it is to be seen that recovery is made to depend upon the company's negligence and plaintiff's freedom from contributory negligence in reference to the fire.

The court by the instructions given withdrew from the jury the question as to the appellant's negligence in setting out the fire, both as to the property damage and the damage for personal injuries resulting in death.

The eighth instruction is the one fatal instruction which must vitiate this recovery, because it tells the jury, in so many words, that without reference to the negligence or non-negligence of the appellant railway company, if it caused the fire in question and that by said fire Amelia Harrison was burned to death, the appellant company would be liable for mental anguish and physical pain and suffering by said Amelia Harrison in being so burned to death.

In 11 Ruling Case Law, pages 978, et seq., statutory imposition of liability irrespective of negligence, is discussed and it is stated that the courts have held, or assumed as a basis for their decisions that such statutes are valid, that is, making the railroads insurers of the property destroyed by fire set out by them. But it is to be noted that the counts were dealing with property and not with personal injuries.

Such was the law in Mississippi prior to the enactment of the 1912 absolute liability statute, by virtue of section 1985, Mississippi Code 1906, as construed by our court in the cases of M. & O. R. R. Co. v. Gray, 62 Miss. 383; L. N. O. & T. R. R. Co. v. N. J. & C. R. R. Co., 67 Miss. 399, 7 So. 350; Railway Co. v. Barrett, 78 Miss. 432, 28 So. 820.

Thus it is prior to 1912, in Mississippi, as in a majority of the other states, it was necessary for the plaintiff to establish the fact that the railroad comany negligently set out the fire to be entitled to recover, and that by the aid of our prima-facie statute, the prima-facie case could be made out by proof that the fire was started by the Railroad Company. This was the law both as applied to property damage, as well as damages by personal injuries. The only effect of the 1912 Mississippi Statute, supra, is to change the rule of property damages as to make the Railroad Company liable for property damaged or destroyed, independent and irrespective of the railroad company's negligence in causing the fire.

The absolute liability statute of Mississippi is a re-script of the Missouri statute of March 31, 1887, and the constitutionality of the latter statute was sustained py the supreme court of the States in the case of St. Louis & San Francisco Railroad Co. v. Matthews, 41 Law Ed. 611. In this decision the supreme court of the United States reviewed the similar statutes of the various states and the decisions of the courts construing the same. It will be seen from a review of Mr. Justice GRAY'S opinion, that the constitutionality of the Missouri statutes, is upheld mainly upon the consideration to afford some indemnity against the risk to those whose property is exposed to the dangerous apparatus used by railroads in the operation of their trains in close proximity to stationary properties. That this is the correct view, is supported by the cases digested in note to the case of Mathews v. St. Louis & S. F. R. R. Co., 25 L. R. A., pages 162 and 163.

A statute which makes a Railroad Company absolutely liable for killing animals is unconstitutional as depriving the company of property without due process of law. Zeigler v. South & North Ala. R. Co., 58 Ala. 564. The authority of that case was recognized in Memphis & C. R. Co. v. Lyon, 62 Ala. 71.

A law imposing absolute liability for the value of stock killed on the track is unconstitutional. Jensen v. Union Pac. R. Co., 4 L. R. A. 724, 6 Utah 253; Bielenburg v. Montana Union R. Co., 2 L. R. A. 815, 8 Mont. 271; Thompson v. Northern Pac. R. Co., 8 Mont., 279; State v. Divine, 98 N.C. 778; Cateril v. Union Pac. R. Co., 2 Idaho 540; Denver & R. G. Co. v. Outcalt, 2 Colo.App. 395; Ohio & M. R. Co. v. Lackey, 78 Ill. 55.

In the case of Birmingham Mineral R. Co. v. Parsons, 100 Ala. 662, 27 L. R. A. 263, 46 Am. St. Rep. 92, 13 So. 602, the court held that the second section of the Alabama statute of 1886 imposed an absolute liability on the railroads whether they had complied with the regulations of the statute as to the erection of guards or not, and that it was therefore unconstitutional as requiring stricter accountability from Railroad Companies in case of inevitable accidents, than from natural persons, the court following Zeigler v. South.

The statute of Colorado providing that every railroad or Railroad Corporation or Company operating any line of railroad or railway, or any branch thereof, which shall damage or kill any domestic animal by running any engine or engines, car or cars, over or against any such animal, shall, except as to certain owners, be liable to the owner for the damage sustained by reason thereof, is unconstitutional. Denver and R. G. Co. v. Baker, 2 Colo.App. 443, 31 P. 181; Denver & R. G. Co. v. Davidson, 2 Colo.App. 447, 31 P. 181.

This act was not saved by the amendment of 1891. Rio Grande Western R. Co. v. Vaughn, 3 Colo.App. 465, 34 P. 264; Rio Grande Western R. Co. v. Chamberlin, 4 Colo.App. 149, 34 P. 450; Sweetland v. Atchinson T. & S. F. R. Co., 22 Colo. 220, 43 P. 1006; Denver & R. G. R. Co. v. Thompson, 12 Colo.App. 1, 54 P. 402; Little Rock & Fort S. R. Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55; Tilley v. St. Louis & S. F. R. Co., 49 Ark. 535, 6 S.W. 8.

So then, the instructions are necessarily erroneous under any view that may be taken for this case or the theory upon which it was prosecuted, because it eliminates altogether the question of the railroad company's negligence as to the alleged wrongful death

We have searched diligently, in vain, to find a case where a similar statute had been invoked and applied to a personal injury and we confidently assert that this case is without a precedent in the reported cases. If the statute had been so written as to apply to this case, we firmly believe this court would, without hesitation, upon the suggestion of its unconstitutionality, declare it invalid.

Dabney & Dabney and Anderson, Vollor & Kelly, for appellee.

To make perfectly plain to this court what counsel for appellant undertake to make plain, but somewhat fail to do, is this Appellant seems to contend that the absolute statute (...