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

• Decision Date: 10 April 1933
• Docket Number: 30493
• Citation: 147 So. 333,167 Miss. 137
• Parties: YAZOO & M. V. R. CO. v. GREEN
• Court: Mississippi Supreme Court

147 So. 333

167 Miss. 137

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

No. 30493

Supreme Court of Mississippi

April 10, 1933

Division B

1 RAILROADS.

Count based on prima-facie negligence of railroad is no longer available when all facts have been proved (Code 1930, section 1580).

2 RAILROADS.

Failure of railroad to comply with statutory requirement that servant precede backing train to give warning held not to warrant recovery by one who fell under cars while walking alongside backing train (Code 1930, section 6119).

3 RAILROADS.

No person can successfully claim benefit of warning statute, where he had as complete information of train's approach as if warned (Code 1930, section 6119).

4. RAILROADS.

Railroad's violation of statute by backing train along passenger depot in excess of three miles per hour must be proximate cause of injury to warrant injured person's recovery therefor (Code 1930, section 6119).

5. RAILROADS.

Railroad's violation of statute by backing train along passenger depot in excess of three miles per hour held as matter of law not proximate cause of injury to one walking alongside train who stumbled and fell under cars (Code 1930, section 6119).

6. EVIDENCE.

Verdict cannot be based on mere conjecture.

HON. S. F. DAVIS, Judge.

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

Action by Dalton Green against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

A. M. Pepper, of Lexington, H. D. Minor, Chas. N. Burch and C. H. McKay, all of Memphis, Tenn., for appellant.

The alleged violation of the backing statute is no basis for liability because it had no causal relation to the injury.

I. C. R. Co. v. Wright, 135 Miss. 435, 444; Crawley v. Richmond, etc., R. Co., 70 Miss. 340; Howell v. I. C. R. Co., 75 Miss. 242; Louisville, etc., R. Co. v. Daniels, 135 Miss. 41; L. N. O. & T. R. Co. v. Caster, 5 So. 388; A. & V. R. Co. v. Carter, 77 Miss. 511; Clisby v. M. & O. R. Co., 78 Miss. 937; L. & N. R. Co. v. Jones, 134 Miss. 53; Ozen v. Sperrier, 150 Miss. 471; Y. & M. V. R. Co. v. Cox, 132 Miss. 564.

An examination of all of the cases in which this backing up statute has been made the basis of liability will show that it definitely appeared that the violation was a proximate cause of the injury and that, if there had been no violation of the statute, the injury might not have occurred.

I. C. R. Co. v. McCalip, 76 Miss. 360; Yazoo, etc., R. Co. v. Metcalf, 84 Miss. 242; I. C. R. Co. v. Causey, 106 Miss. 36; I. C. R. Co. v. Archer, 113 Miss. 158; M. & O. R. Co. v. Campbell, 114 Miss. 804.

Backing statute does not apply because its purpose is to give warning and appellee was already fully warned.

Billingsley v. I. C. R. Co., 100 Miss. 624; Yazoo, etc., R. Co. v. Cox, 132 Miss. 570.

J. G. Holmes, of Yazoo City, and P. P. Lindholm, of Lexington, for appellee.

The recovery was proper under the backing statute. The court has held that the statute was intended to apply to all persons suffering injuries by its violation, intending passengers, idlers, or tramps.

R. R. Co. v. Pace, 109 Miss. 667; R. R. Co. v. McCalip, 76 Miss. 360.

The construction of the statute as made by the decisions brings the case at bar squarely within the statute.

Mobile & Ohio Railroad Co. v. Campbell, 114 Miss. 803.

Appellant contends that there can be no recovery in this case because there was no causal connection between his injury and the violation of the statute. The statute as stated in the Metcalf case, followed by the Causey case, was intended for the protection of all persons injured within the statutory limits, and was designed to discourage the reckless practice of backing trains into and along passenger stations which are generally frequented by numerous persons.

It is very questionable in our minds that it is necessary under this statute for the injury to be the proximate result of the violation. The statute was designed for the protection of human life and to discourage railroad companies in recklessly backing their trains into such premises, and says that for any injury occurring while the company is violating the statute, full damages may be recovered without regard to mere contributory negligence. In the case at bar, however, it is not necessary to resort to this construction of the statute, that is, that recovery may be had for an injury whether it be the proximate result of the violation, or not, because the case was submitted to the jury on the theory that the injury must be the proximate result of a violation, and it was left to the jury to determine this as an issue of fact, and taking the matter therefore most favorably to appellant, we submit that at most the jury were privileged to say whether or not the injury was the proximate result of the violation of the statute.

Railway Co. v. Carter, 77 Miss. 511; Jones v. Railroad Company, 75 Miss. 970; Garnett v. L. & N. R. R. Co., 129 Miss. 795, 93 So. 241; Brinkley v. Southern Railway Co., 113 Miss. 367; Tindall v. Davis, Director General, 129 Miss. 30; Stephens v. Y. & M. V. R. R. Co., 81 Miss. 195; I. C. R. R. Co. v. Watson, 39 So. 69; Sunflower Compress Co. v. Clark, 145 So. 618.

Argued orally by H. D. Minor and A. M. Pepper, for appellant, and by P. P. Lindholm and J. G. Holmes, for appellee.

OPINION

Griffith, J.

At Gwin, in the county of Holmes, there is a junction point from which one branch line of appellant railroad departs from the main line and goes to Durant. A passenger station is maintained at Gwin, and at the time of the injury complained of there was a roundhouse, machine ship, powerhouse, and there were many tracks, one being the main line, two passing tracks, a caboose track, a lead track, nine classification tracks, four repair tracks, and also others. Across the network of tracks there was a path used by the employees, and also by the public, leading from the passenger platform in a westerly direction to highway No. 49, along which there were some stores.

After dark on the night of the injury complained of, appellee left his home on the east of all the above-described structures and tracks and went along the path mentioned to a store on said highway; and, having made a purchase there, he started on his return trip, using the pathway aforesaid. He had proceeded about two-thirds of the necessary distance when he reached the lead track, which he found was blocked by a switch engine going north and drawing a cut of some twenty-five cars. This train was then going forward, not backward, and it occurred to appellant that he could perhaps save some time by walking along south next to this train of cars and thus get across the lead track earlier than if he should simply wait. Thereupon he turned south walking along the cut of cars, but soon after he had started south the train reversed its direction and began backing south into one of the classification tracks. The train was then proceeding at the rate of from six to ten miles per hour, and was not preceded by a servant of the railroad to give warning. While appellant was thus walking alongside this cut of cars, he stumbled over some coal that had been dropped from a tender, which caused appellant to fall under the train, and the north trucks of the sixth car passed over one of his feet, severely injuring him.

Appellee sued the railroad company; the declaration being in two counts. The first count was based upon the so-called prima-facie statute, section 1580, Code 1930, and the second count upon the violation by the railroad company of section 6119, Code 1930, which reads as follows: "It shall be unlawful to back a train of cars, or part of a train, or an engine into or along a passenger depot at a greater rate of speed than three miles an hour; and every such train, part of a train, or engine backing into or along a passenger depot and within fifty feet thereof, shall, for at least three hundred feet before it reaches or comes opposite to such depot, be preceded by a servant of the railroad company on foot, not exceeding forty nor under...