Yazoo & Mississippi Valley R. R. Co. v. McCaskell

• Decision Date: 11 November 1918
• Docket Number: 20336
• Citation: 118 Miss. 629,79 So. 817
• Parties: YAZOO & MISSISSIPPI VALLEY R. R. CO. v. MCCASKELL
• Court: Mississippi Supreme Court

79 So. 817

118 Miss. 629

YAZOO & MISSISSIPPI VALLEY R. R. CO. v. MCCASKELL

No. 20336

Supreme Court of Mississippi

November 11, 1918

Division B

APPEAL from the circuit court of Tallahatchie county, HON. E. D DINKINS, Judge.

Suit by Robert McCaskell against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff on peremptory instruction, defendant appeals.

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

Judgment reversed and remanded.

R. B Mayes, W. E. Stone, Chas. N. Burch, H. D. Minor and John L. Exby, for appellant.

J. H. Caldwell, for appellee.

OPINION

STEVENS, J.

Appellee, as plaintiff in the court below, sued to recover damages for personal injuries alleged to have been sustained while in the employ of the defendant company, and while engaged in repairing the defendant's track at a point near Cowart, in Tallahatchie county. Plaintiff alleged, and the proof tends to show, that he was working as a section hand when a freight train operated by appellant passed over the tracks at the point where the section crew were at work; that plaintiff got off the track and stood aside for the moving train to pass; that while said freight train, consisting of nine cars, one of which was loaded with cross-ties, was passing the section crew, the cross-ties on the moving car became loose and fell, or were thrown, from the moving train against the plaintiff, striking him on the head and back, knocking him down, and injuring him severely. Plaintiff in his declaration alleged that his injuries were due to the "careless, improper, and negligent loading and moving of said car," and also to the "rough and uneven track over which train was being run, or moved, at a rate of speed which rendered said movement dangerous and liable to cause the cross-ties and other freight carried thereon to be thrown therefrom, and to hurt and injure the plaintiff whose position was seen and known to the servants of the defendant in charge of said train.

The defendant filed the plea of general issue and two special pleas, one of which charged that the train was engaged in interstate commerce, and that the car loaded with cross-ties was being moved interstate, and further that plaintiff himself was engaged in working upon a track then being used in interstate commerce, and pleaded further that plaintiff as a section hand assumed all the risk of the injury complained of. The other special plea undertook to plead a settlement and release for the injuries complained of.

The case was presented to the court and jury, and the trial judge granted a peremptory instruction to find for the plaintiff, and the jury assessed the damages at one thousand dollars. From the judgment entered, appellant prosecutes this appeal, contending that the trial court erred in granting the peremptory instruction asked by the defendant, and that the court erred in granting the peremptory instruction, that the court erred in refusing the instructions asked by the defendant, and that the court on the trial of the case refused to allow appellant to amend its special plea by exhibiting and attaching the written release relied upon, but excluded said release from the consideration of the jury, because the same was not attached to the plea. The plaintiff upon the trial of the case objected to the introduction of any evidence as to the release because the same was not filed in accordance with section 735, Code of 1906. A motion for a new trial was made and overruled.

It is conceded by counsel for both parties that this cause "is admittedly governed by the federal Employers' Liability Act" (Act April 22, 1908, chapter 149, 35 Stat. 65 [U. S. Comp. St. 1916, sections 8657-8665]). The argument in the main on behalf of appellant is directed to the proposition that section 1985, Code of 1906, as amended by chapter 215, Laws of 1912, our prima- facie statute, has no application to this case, and that the erroneous application of this statute by the learned trial judge led to the granting of the peremptory instruction complained of At the time the trial court disposed of this case, the decision of the United States supreme court in the case of N. O. & N. E. Railroad Co. v. Harris, 247 U.S. 367, 38 S.Ct. 535, 62 L.Ed. 1167, had not been rendered, and the learned trial judge was accordingly justified in following the opinions rendered by this court in Railroad Co. v. Scarlet, 115 Miss. 285, 76 So. 265, and Y. & M. V. Railroad Co. v. Mullins, 115 Miss. 343, 76 So. 147. All controversy as to the application of the Mississippi statute has been settled by the supreme court of the United States in the Harris Case, and it follows that the granting of the peremptory instruction cannot be justified under the state statute or the failure of the defendant company to meet any presumption imposed by this statute.

It is contended by counsel for appellee that the doctrine of res ipsa loquitur applies in this case, while for appellant it is contended that under the federal Employers' Liability Act the burden of proving negligence is upon the plaintiff, and that the doctrine of res ipsa loquitur as between master and servant has no application in federal tribunals.

In the consideration of this case it is necessary, we think, to keep before us the testimony in the record. Tom Simmons, a witness for the plaintiff, gave positive testimony to the effect that the plaintiff was hurt "by a passing train there;" that "a car busted with a load of ties; the bandage busted on them in the car where the ties were." Certain testimony was introduced for the defendant. There is testimony tending to show that the train was moving at a speed approximately fifteen miles an hour; that the condition of the track was reasonably good; that the car of ties was loaded by Lamb-Fish Company, the shipper, and was not loaded by the employees of the railroad company. According to the plaintiff's testimony he was seriously injured while exercising due care, and while in a position when an injury of this kind would not be expected. These are the prominent or vital facts, and about the only controlling facts shown by the record.

In cases arising under the federal Employers' Liability Act there can no longer be any dispute over the proposition that the burden of proof is upon the plaintiff to show negligence and that the injuries complained of are the result of such...