Yazoo & Mississippi Valley Railroad Co. v. Hawkins

• Decision Date: 10 March 1913
• Citation: 61 So. 161,104 Miss. 55
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. SIMON HAWKINS
• Court: Mississippi Supreme Court

61 So. 161

104 Miss. 55

YAZOO & MISSISSIPPI VALLEY RAILROAD CO. v. SIMON HAWKINS

Supreme Court of Mississippi

March 10, 1913

March 1913

APPEAL from the circuit court of Warren county, HON.H. C. MOUNGER Judge.

Suit by Simon Hawkins against the Yazoo and Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Reversed and dismissed.

Mayes &amp Mayes, for appellant.

We contend that the peremptory instructions asked by the appellant should have been granted.

In the first place it must be conceded that appellee's fall was caused solely by his own negligence. He simply made a misstep in getting on the moving train and fell down. The train was running slowly and the step was properly constructed and in good repair. It is not necessary to argue further with reference to this fall, because there could be no possible claim of liability on this account.

There can be no claim on account of the engineer and the other members of the crew, seeing appellee's situation of peril and not trying to save him, because it is agreed that everything possible was done to stop the train immediately when appellee fell. There can be no claim under the prima facie statute, for every circumstance connected with the unfortunate occurrence has been detailed by eyewitnesses. All the facts are in evidence and must control.

There can be no recovery in this case because of any defect, in the air brakes, or any of the machinery, ways or appliances because the undisputed testimony shows that when the train left Cleveland, Mississippi, the initial point, its air equipment was in splendid condition, and that although an accident happened to the engine putting the brakes on the engine, the plaintiff testified that he knew of this accident to the brakes. Notwithstanding this accident to the brakes, the testimony shows the train was still equipped with seventy-five per cent. air pressure, the amount required by the interstate commerce rules and regulations, and was reasonably safe, however, whatsoever shadow of a claim the appellee has, he must rest it on the alleged failure of the air brakes on the train to work, after he had fallen, claiming as a consequence the failure of the train to stop in time to save him from injury.

But in no aspect of the case can the appellant be liable, because the uncontradicted testimony shows that appellant failed in no duty it owed appellee, that it was guilty of no wrong and guilty of no negligence causing, or contributing in any degree, to the injury appellee received. The evidence shows the step on the engine, on which plaintiff attempted to alight, in good condition and that his fall was caused by appellee's misstep.

The testimony shows that the train was inspected when it left Cleveland, the initial point, and that at the beginning of the journey the air was in good working order. Plaintiff's own testimony shows that air on the engine was diminished by an accident to the air brakes at Shaw, a place en route. The only possible showing of any failure to provide safe air brakes was occasioned by this accident, en route at Shaw, a short distance north of Estelle. Mr. Gravey, the machinist, testified that the shops at Vicksburg were the nearest repair shop and on cross-examination the same witness testified that if the brakes on the engine broke on the road "the company could not help that," meaning of course that the engine could not be fixed until it reached Vicksburg.

Save for the accident at Shaw, the record shows the condition of the train good in every respect and no other negligence is complained of. And except for the plaintiff's conjecture that he was carried a distance of about 100 feet in the inexplicable situation he testified himself to be in, the testimony shows that the brakes on the train, is a whole, were in good condition and reasonably safe, at the time of the accident. But when the plaintiff had full knowledge of the accident at Shaw, no one will contend that it was negligence on the part of the railroad company to use the engine to the end of the journey where defects recently made may be repaired.

The law is reasonable and does not require that every time an accident occurs on the road rendering the serviceability of the brakes on an engine a little less than ordinarily required that a new engine must be provided. After an accident occurs the railroad company is entitled to a reasonable time within which to make repairs.

In the case of Seaboard Manufacturing Co. v. Woodson, 94 Ala. 143, 10 So. 87, the court says: "Unless there had been a reasonable opportunity to effect a remedy, it could not be said that the failure to do so was negligent. The defendant must have had sufficient time to remedy the defect after its discovery, before it could be chargeable with negligence in failing to effect such a remedy. Mere knowledge without opportunity to act on it would not be negligence."

"The absolute obligation of the employer to see that due care is used to provide safe appliances for his workmen is not extended to all the passing risks which arise from short-lived causes." Whitaker v. Brent, 167 Mass. 588, 46 N.E. 121.

There is no difference in principle between a car or an engine being transported to shops for repairs and the use of such car or engine after same had been disabled en route, until such reasonable time as shops could be reached, where in both instances the servant knows of the defects.

It is held that where a car is being carried to shops for repairs that section 193 of the Constitution with reference to knowledge of defects, etc., does not apply. And a person using such instrumentalities knowing their defective condition is guilty of contributory negligence as a matter of law. Illinois Central Railroad Co. v. Bowles, 71 Miss. 1003, 1580, 138.

In order to recover on account of defects in ways and appliances such defects must have been the proximate cause of an injury. 20 Ency. of Law (2 Ed.), p. 78, citing Garnett v. Phoenix Bridge Co., 98 F. 192.

In the case of the Railroad Co. v. Daniels, 73 Miss. 258, it is held that if the machinery and appliances are sufficient for the purpose intended and if used for the purpose directed the company is not liable for an injury sustained by an employee while using them in an improper manner, or for a purpose for which they were not intended, although the machinery and appliances may be defective and the defect contributed to the injury.

The case of Bell v. Oil Mill Co., 77 Miss. 387, is a case in which plaintiff is an employee of an oil mill and while engaged in lifting buckets of pitch in some way lost his balance and fell, it seems "the carpenter's horse" used by him fell at the same time that the plaintiff fell. Held, that the fact that the apparatus fell with the jerk received from plaintiff's fall does not render it defective for the purpose for which it was intended and for which it was being used.

If the injury of appellee was contributed to in any way by the use of the engine after the accident to the brakes at Shaw, his situation was such that the defendant could not reasonably have been expected to have foreseen, and if the injury caused by the use of defective machinery, ways and appliances is such as would not have been in the reasonable contemplation of the master while using defective apparatuses, defendant cannot recover.

In the case of Chicago R. R. Co. et al. v. Denius, decided by the Supreme Court of Indiana, March 20, 1908, reported in 84 N.E. 9, it was held:

"In an action against a railroad company for an injury resulting from defendant's alleged failure to properly ballast its road or fill the holes between the ties, it clearly appeared that plaintiff's foot slipped from a tie, which caused him to fall, and that his inability to remove or extricate himself before he was caught and injured may have depended on the fact that the road was not ballasted. Held, that such result or consequence was not one which defendant was bound to anticipate as the natural and probable consequence of not properly ballasting its road."

In delivering the opinion of the court JORDAN, J., said:

"The insistence of appellant's counsel is that under the facts alleged in the complaint it is not disclosed that the negligence attributed to appellants was the proximate cause of the injury sustained by appellee. On the other hand counsel for the latter argue that the complaint established that the low place, or hole as they term it, was the proximate cause of the injury. . . . It is apparent, we think, that the slipping of appellee's foot from the crosstie upon which he had stepped was the first immediate and originating cause of the injury which he sustained. By reason of the fact that his foot slipped from the tie, it appears that he fell to the ground into one of the low places between the rails. No complaint is made in the pleading, in respect to the tie from which his foot slipped, but because of the accident or injury in question, is attributed to the negligence of appellants in not properly ballasting their roadbed at the place where the accident occurred and in maintaining it with the low places thereon, into one of which appellee fell and from which, as alleged, he was unable to extricate or remove his body in time to escape from being run over by the moving car. . . . . It has been affirmed by this court that proximate cause is the efficient cause, or in other words, the cause which originates and sets in motion the dominating agency that necessarily proceeds through other causes as mere instruments or vehicles in the natural line of causation to the result in controversy. Billman v Indianapolis, etc., R. Co., 76 Ind. 166, 40 Am. Rep....