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

• Decision Date: 18 April 1932
• Docket Number: 29965
• Citation: 163 Miss. 505,140 So. 873
• Parties: YAZOO & M. V. R. CO. v. HAWKINS
• Court: Mississippi Supreme Court

140 So. 873

163 Miss. 505

YAZOO & M. V. R. CO. v. HAWKINS

No. 29965

Supreme Court of Mississippi

April 18, 1932

Division A

1 CARRIERS.

Whether banana peeling, on which passenger slipped in alighting from train, was placed on platform by trainman, Held for jury.

2 CARRIERS.

Instruction that railroad company contracted to exercise highest degree of care and diligence to see that passenger could alight safely from train held not erroneous.

3 CARRIERS.

Carrier must exercise highest degree of care and diligence for passengers' safety.

HON. D. M. ANDERSON, Judge.

APPEAL from circuit court of Scott county, HON. D. M. ANDERSON, Judge.

Action by Ross Hawkins against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Flowers, Brown & Hester, of Jackson, for appellant.

Defendant's request for a directed verdict should have been granted since there is entire absence of evidence (1) that the banana peeling had been placed on the platform by anyone for whose conduct defendant is responsible or (2) that it had been there for such a length of time that defendant's servants should have discovered and removed it in the exercise of reasonable care.

Meridian Terminal Company v. Stewart, 143 Miss. 523; Y. & M. V. Railroad Company v. Hawkins, 159 Miss. 775; Hotenbring v. Boston, etc., Ry. Co., 211 Mass. 77, 97 N.E. 624, 39 L.R.A. (N.S.) 419; Proud v. Phil., etc., R. R. Co., 63 N.J.L. 702, 46 A. 710, 50 L.R.A. 469; Pittsburg, etc., R. R. Co. v. Rose, 40 Inc. App. 240, 79 N.E. 1094; Louisville, etc., R. R. Co. v. O'Brien, 163 Ky. 538, 174 S.W. 31, Anno. Cas. 1916E 1084; Travis v. United Rys. Co. (Mo.), 185 S.W. 738; Prescot, etc., R. R. Co. v. Thomas, 114 Ark. 50, 167 S.W. 486; Jones v. St. Louis, etc., Ry. Co., 5 S.W.2d 101; Conover v. Del., etc., R. R. Co., 92 N.J.L. 602, 106 A. 384; Rhodes v. Houston, etc., R. R. Co. (Tex.), 242 S.W. 263.

If it be contended that on the testimony of the plaintiff the jury was entitled to infer negligence in one respect or another, any such inference was completely rebutted by the uncontradicted proof (1) that the banana peeling was not placed there by an employe of the defendant, and (2) was not there when the train pulled into the station at Morton.

R. R. v. Odom, 133 Miss. 543-553.

A carrier of passengers is not bound to anticipate unusual and unexpected causes of peril; nor is it bound to keep up a continuous inspection of its trains and to know at each moment the condition of every part of the train. That is particularly true with reference to shifting and transitory conditions.

Louisville, etc. R. Company v. O'Brien, 164 Ky. 538, 174 S.W. 31, Ann. Cas. 1916E 1084; Proud v. Phil., etc. R. Company, 64 N.J.L. 702, 45 A. 710, 50 L.R.A. 469.

The rule that a carrier of passengers is not an insurer of the safety of its passengers is so universally recognized that it does not require the citation of authority to support it.

L. & N. R. Company v. Compiretto, 137 Miss. 766, 102 So. 837.

The one instruction given to plaintiff was erroneous because it did not predicate liability on negligence.

L. & N. R. R. Co. v. Compiretto, 137 Miss. 766, 102 So. 837; R. R. Co. v. Trotter, 61 Miss. 417.

The carrier is not required to exercise "the highest degree of care and diligence" with reference to the incidental dropping of a banana peeling by one of its passengers or other person for whose conduct it is not responsible.

Bridges v. Railroad Company, 86 Miss. 584, 38 So. 788.

Uncontradicted evidence cannot be arbitrarily rejected.

Stewart v. Coleman, 120 Miss. 28, 46; Railroad v. Harrison, 105 Miss. 18, 23.

There is no room for an inference that the employe who so carefully picked up the something from the floor of the car carried it out and threw it on the platform-- a much more dangerous place to leave it. There is a presumption of right doing, rather than wrongdoing.

Orgill Brothers v. Perry, 157 Miss. 543, 547.

The jury, as well as the judge is bound by uncontradicted, reasonable testimony, although, of course, oral testimony not otherwise contradicted, may be opposed by physical facts or by facts of common knowledge.

Stevens v. Stanley, 154 Miss. 627, 629.

Judgments may not be based on conjectures.

Tyson v. Utterback, 154 Miss. 381, 390.

R. L. Nichols, of Forest, and Flowers, Brown & Hester, of Jackson, for appellant.

It is a fundamental proposition of law that inference will not be built upon inference. One presumption will not be drawn from another presumption.

Gadsden General Hospital v. Bishop, 96 So. 145, 209 Ala. 272; United States v. Ross, 92 U.S. 281, 23 L.Ed. 707; Williams v. Wilson, 97 So. 911, 210 Ala. 289; 22 C. J. 83; Hinman v. Sabin, 147 Miss. 509, 112 So. 871.

Percy M. Lee, Frank F. Mize and Colbert Dudley, all of Forest, for appellee.

The proven facts together with the inference reasonably drawn therefrom made a case for the jury.

G. & S. I. R. Co. v. Prine, 79 So. 62; N. O. & N.E. R. Co. v. Penton, 100 So. 521; N. O. & N.E. Co. v. Jackson, 105 So. 771; N. O. & N.E. R. Co. v. Martin, 105 So. 864.

The jury, as well as the judge, is bound by uncontradicted, reasonable testimony, although, of course, oral testimony not otherwise contradicted, may be opposed by physical facts or by facts of common knowledge.

Stevens v. Stanley, 122 So. 755.

The instruction in question is identical with an instruction granted the appellee in the first trial and was correct.

L. & N. R. R. Co. v. Compiretto, 102 So. 837; Meridian Terminal Co. v. Stewart, 108 So. 496.

Argued orally by J. T. Brown, for appellant, and by Percy, M. Lee, for appellee.

OPINION

Cook, J.

The appellee, Ross Hawkins, sued the defendant railroad company for damages on account of personal injuries alleged to have been sustained by him as a result of a fall caused by stepping on a banana peeling as he was alighting from a passenger train at Morton Mississippi, and from a judgment in his favor for one thousand two hundred fifty dollars the defendant prosecuted this appeal.

This is the second appeal in this cause; the opinion of the court on the first appeal being reported in 159 Miss. 775, 132 So. 742. In the opinion on the first appeal, the essential facts are fully stated, and we will not give a further statement of the facts except to call attention to certain differences in the testimony given on this trial from that on the first, and also to certain additional testimony introduced by the respective parties.

On the first trial, the appellee testified that a trainman came to where certain children had dropped a banana peeling on the floor of the coach in which he was riding and "picked up the banana peeling and carried it out at the front of the coach;" this being the end of the coach at which appellee soon thereafter attempted to alight. On the second trial the appellee testified that he saw one of the trainmen go to the place where the children were or had been eating bananas, and pick up "something" from the floor of the coach, saying at the time, "I have got to get this out of here," and that he carried the article which he had picked up out of the front door of the coach.

In the first opinion in this cause the court held that, in view of the fact that it was necessary for the appellee to prove that the presence of the banana peeling on the platform was the efficient cause of the injury, the court below committed error in excluding certain testimony offered by the appellant railroad company...