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

• Decision Date: 02 July 1917
• Docket Number: 19420
• Citation: 115 Miss. 343,76 So. 147
• Parties: YAZOO & M. V. R. R. CO. v. MULLINS
• Court: Mississippi Supreme Court

76 So. 147

115 Miss. 343

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

No. 19420

Supreme Court of Mississippi

July 2, 1917

Division A

APPEAL from the circuit court of Adams county, HON. R. E. JACKSON Judge.

Suit by Mrs. Clara J. Mullins, Administratrix of James D. Mullins deceased, 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.

Affirmed conditionally.

Mayes Wells May & Sanders and Ratcliff & Kennedy, for appellant.

Reily & McCall, for appellee.

OPINION

HOLDEN, J.

This is an appeal from a judgment for twenty thousand dollars obtained by the appellee in the circuit court of Adams county against the appellant railroad company as damages for the injury and death of James D. Mullins, a flagman in the employ of the appellant railroad.

The facts as to the injury and death, in so far as they are material to the decision of this case, are briefly these: Mullins was a flagman employed in the operation of one of appellant's interstate freight trains, consisting of about thirty-four cars, which had stopped at about two a. m. at Harriston, and there did some switching. When the train was ready to proceed north from Harriston at four a. m., it was signaled by Mullins and a brakeman to leave, and it left the station at a rapid rate of speed. Mullins when last seen before his injury was standing alongside of the train on the east side of the main track. Shortly after the train left Harriston Mullins was found lying immediately east of the main track with his arm on the rail, completely crushed from the shoulder to the fingers. He stated to the persons who found him that he had "missed his hold," but made no other explanation as to how the injury occurred before he died in the hospital about nine hours after the injury. No witness testified as to how the injury happened.

The suit was brought under the federal Employers' Liability Act, and was based upon the alleged negligence of the railroad in not furnishing safe ways and appliances for the use of deceased, and also that the engineers (doubleheader) were negligent in starting the train at a dangerous rate of speed from the station of Harriston, causing the deceased to fall when he attempted to get on the train. The plaintiff at the trial below proved the injury to deceased was inflicted by the running of the cars of appellant railroad, and also introduced testimony tending to prove by circumstances, physical conditions, and inferences, the allegations, of the declaration as to defective and unsafe ways and appliances and the dangerous speed of the train. When the plaintiff rested, a peremptory instruction to find for defendant was asked and refused by the court. The appellant railroad introduced its testimony showing that the train was properly and safely equipped, and that there were no defective ways or appliances, and that the train was not negligently handled; and it then again requested a peremptory instruction in its favor, which was refused, and the case was submitted to the jury. A verdict of twenty thousand dollars was returned in favor of the plaintiff.

The appellant assigns and urges several errors of the lower court. The main contention urged for reversal is that the peremptory instruction asked by the railroad should hayed been granted because the appellee failed to show any negligence on the part of the railroad, and that at all events appellee did not prove that the negligence of appellant proximately caused the injury of the deceased. This contention may be correct and would justify a reversal of the judgment if the appellee had no other ground upon which to rest the judgment. But it is unnecessary for us to pass upon this question, as our prima facie statute (section 1985 of the Code of 1906) is applicable to this case and comes to the aid of appellee as "a present help." The whole evidence in the case shows conclusively that the injury was inflicted by the running of the cars of appellant, and the burden was upon the railroad to explain the injury and show how it occurred. This was not done, and it appears that it could not be explained at the trial as no person knew how it occurred. The brief of counsel for the appellant contains this statement of fact:

"No person seemed to know just how the accident occurred. At all events no witness could be produced or was produced who saw the actual infliction of injury, but the testimony did show that the injured flagman stated that he had received his injury by reason of the fact that he had 'missed his hold.' As to when he 'missed his hold,' or as to what part of the train he was occupying at the time, or as to whether or not it was before or after he boarded the train, or as to what caused him to 'miss his hold,' and as to what he had hold of, the record is entirely silent, and no witness could be produced who could testify."

Therefore the plaintiff having proved a case within the prima facie statute, and the defendant railroad having failed, to explain the injury, its negligence and liability conclusively appeared as a matter of law, and the circuit judge should have peremptorily instructed the jury to find for the plaintiff; and, this being true, it follows that appellant cannot complain because the question of negligence vel non was submitted to the jury. Alabama, etc., R. Co. v. Thornhill, 106 Miss. 387, 63 So. 674. ...