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

• Decision Date: 21 February 1938
• Docket Number: 32883
• Citation: 181 Miss. 150,179 So. 274
• Parties: YAZOO & M. V. R. Co.
• Court: Mississippi Supreme Court

179 So. 274

181 Miss. 150

YAZOO & M. V. R. Co. v. SKAGGS

No. 32883

Supreme Court of Mississippi

February 21, 1938

(Division B.)

1 CARRIERS.

When a carrier of passengers furnishes a stepbox or footstool to facilitate passengers in boarding or alighting from a train it must use due care to see that the stepbox is in good repair, safe in strength, and so constructed as not to readily overturn, and that when set out for the use of passengers, it is placed upon a reasonably level and stable surface, in proper relation to the bottom coach step, that at least one efficient, properly placed handhold or handrail is supplied alongside the coach steps, and that at night a light is furnished sufficient for the passenger readily to see the steps and stepbox.

2 CARRIERS.

A carrier is not an insurer of alighting passengers.

3 CARRIERS.

A passenger alighting from a train is obligated to duly avail himself of his mental faculties and physical powers and to make use of the appliances furnished by the carrier in the usual and normal manner in which they are intended to be used.

4. CARRIERS.

There is no strict requirement respecting the areas for alighting by passengers at flag stations, and it is not required that the area shall be gravelled or, if so, that it shall be smooth or level or free from bumps, ridges, or roughness, and the only requirement is that it shall be reasonably safe for those who use it for the purposes for which it is intended and with due care on their part.

5. CARRIERS.

The requirement as to the place where a stepbox is set for passengers is that it shall not be unlevel to such a degree or have bumps or ridges of such height or ruts between them so wide and deep as to cause danger that the stepbox will turn over when properly stepped upon by passenger.

6. CARRIERS.

The fact that a stepbox tilted over when an alighting passenger stepped upon it is not sufficient to authorize a jury to find that roughness or unevenness in the surface caused the tilting.

7. NESLIGENCE.

The doctrine of res ipsa loquitur does not excuse or dispense with definite proof by plaintiff of material facts which are tangible and are capable of direct and specific evidence as much within the power of plaintiff to produce as of the defendant.

8. NEGLIGENCE.

The doctrine of "res ipsa loquitur" is available to establish negligence on the part of defendant only when the action is such that according to ordinary human experience it could not have happened without negligence.

9. NEGLIGENCE.

The doctrine "res ipsa loquitur" does not apply when, on the whole case, there has been specific proof which discloses some reasonable explanation for the happening other than the negligence charged against the defendant.

10. CARRIERS.

Where a railroad company's premises at flag stations are otherwise reasonably safe, no permanent lighting facilities are required to be furnished.

11. CARRIERS.

An electric lantern of the type used by all trainmen, both freight and passenger, in their work, in good condition, and twice as powerful as the oil lantern formerly in service, is fully sufficient for use to light the vestibule, coach steps, and step box for alighting passengers at a flag station.

12. CARRIERS.

It is the obligation of an alighting passenger, and particularly an aged and infirm man, to go down steps without hurry, to look where he is going, to look for the stepbox and see that he steps upon it, and, to enable him to more certainly do this, to use the handrail.

13. NEGLIGENCE.

A party may not complain of an injury by a tool when the efficient cause of his injury was his failure to use the handle.

14. APPEAL AND ERROR.

A verdict, although treated with great respect, has no force to convert a possibility into a probability.

15. CARRIERS.

Evidence, in an action for Injuries to an alighting passenger, held to make it reasonably probable that the injury resulted from the hurry of plaintiff without using the handrails and without taking care to see the stepbox, causing him to step on edge of box, as a consequence of which it turned over, and that it was not due to the unevenness of the ground, to the pushing of the stepbox too far under the step, or to the absence of light.

Division B

APPEAL from the circuit court of Holmes county, HON. S. F. DAvis, Judge.

Action by D. S. Skaggs against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment for defendant.

Reversed, and judgment here for appellant.

A. M. Pepper, of Lexington, Burch, Minor & McKay, of Memphis, Tenn., and E. C. Craig, of Chicago, Ill., for appellant.

Plaintiff's accident was the result of his own negligence against which the defendant is not an insurer.

N. O. J. & G. N. R. Co. v. Statham, 42 Miss. 607; Railroad Co. v. Humphrey, 83 Miss. 721; Railroad Co. v. Smith, 85 Miss. 349.

The proof in the case at bar is overwhelming that there was sufficient light for the plaintiff to disembark and the stepbox was placed on firm and level foundation, in proper position.

Sevier v. Vicksburg R. Co., 61 Miss. 8; L. & N. R. Co. v. King, 73 So. 456; Central of Ga. v. Carlisle, 2 Ala.App. 514, 56 So. 737; Atlantic Coast Line R. Co. v. Farmer, 79 So. 35; So. R. Co. v. Hayne, 95 So. 879; Scott v. Vicksburg, etc., R. Co., 90 So. 840, 20 A.L.R. 908.

The rule is universal that ordinarily there is no duty resting on a carrier of passengers to assist a passenger in boarding or alighting from its train or car.

Southern R. Co. v. Laxon, 114 So. 290, 55 A.L.R. 289; New Orleans, etc., R. Co. v. Statham, 42 Miss. 607, 97 Am. Dec. 478.

We contend with confidence that the evidence in this case shows conclusively that the defendant furnished adequate and sufficient light and stepbox, properly placed on a stable surface, for the plaintiff to alight from the train; that through his own carelessness and negligence he failed to place his foot properly on the stepbox but stepped on the edge of it, stumbled and fell through no negligence on the part of the defendant.

Barbour & Barbour, of Yazoo City, and Johnson & White, of Lexington, for appellee.

The jury had ample testimony on which to base a finding that the appellant failed to provide sufficient light for the disembarkation of appellee and that by reason of such failure the appellee received his injuries.

There is in the record sufficient evidence to show that the jury could fairly conclude that the appellant, through its flagman, was negligent in placing the step-box too far underneath the bottom step of the passenger coach and that as the result thereof the appellee received his injuries.

The record reflects sufficient testimony to support the appellee's contention that the appellant was negligent in that its flagman failed to take proper care and caution to place the stepbox securely and firmly upon the graveled platform, and that by reason of such failure the appellee sustained his injuries.

The record fairly abounds in testimony to the effect that the appellant was negligent in maintaining a rough and uneven surface upon the ground constituting its station platform at Lamkin where it regularly discharged passengers and. that such negligence proximately contributed to the injuries which the appellee received.

The verdict of the jury is amply supported by the evidence. The jury is the sole judge of the evidence and the value thereof, and also it rests with the jury to determine the credibility of the witnesses and the weight to be accorded their respective testimony.

Burrill v. Rau, 153 Miss. 437, 121 So. 118; N. O. & G. N. Ry. v. Walden, 160 Miss. 102, 133 So. 241; Newton v. Homoehitto Lbr. Co., 162 Miss. 20, 138 So. 564; Miss. P. & L. Co. v. Smith, 169 Miss. 447, 153 So. 376; National Box Co. v. Bradley, 171 Miss. 15, 154 So. 724.

OPINION

Griffith, J.

Appellee, hereinafter referred to as the plaintiff, sued the railroad company, averring that in alighting at night from a passenger coach he was severely and permanently injured by reason of the negligence of the carrier in respect to the stepbox used on that occasion. We will have occasion to note that, as shown by the present record, the plaintiff here is the same person who was plaintiff in Oliver Bus Lines v. Skaggs, 174 Miss. 201, 164 So. 9.

When all the cases on the subject of stepboxes are grouped around Scott v. Vicksburg, etc., Ry. Co., 150 La. 537, 90 So. 840, 20 A.L.R. 908, which we think is the best-considered among them, the rule is found to be that where a carrier of passengers furnishes a stepbox or footstool to facilitate them in boarding or alighting from its train, it must use due care to see that the stepbox is (1) in good repair and safe in strength, and is so constructed as not to be readily overturned; that when set out for the use of passengers it shall (2) be placed upon a reasonably level and stable surface; and (3) so placed as to be in proper relation to the bottom coach step to which the stepbox is a temporary complement; (4) that at least one efficient, properly placed handhold or handrail shall be supplied alongside the coach steps; and (5) that at night a light shall be furnished sufficient that the passenger may readily see the steps and the stepbox. The carrier is not an insurer, and the passenger on his part is obligated (a) to duly avail of the mental faculties and physical powers with which nature has endowed him, and (b) to make use of the said appliances furnished him by the carrier in the usual and normal manner in which such appliances are intended to be used.

There is no complaint in this case as to the safety of the stepbox either in its construction or strength; no complaint that it was not in proper...