Opinion
No. 29085.
March 16, 1931. Suggestion of Error Overruled April 13, 1931.
1. CARRIERS.
Prima facie presumption arose that injury sustained by passenger when coach was derailed was due to negligence of railroad.
2. CARRIERS. Negligence of carrier held question for jury in passenger's action for injuries sustained when railroad coach was derailed.
Defendant carrier produced evidence of employees to show frequency and nature and character of inspections made of locomotives and coaches and roadbed, ties, and rails, and master mechanic testified that the engine and tender had been inspected and were in good condition and that he was unable to determine the cause of the derailment.
3. TRIAL.
Instruction denying passenger recovery against railroad if derailment was caused by latent or concealed defect, but directing verdict for plaintiff if evidence left cause of derailment uncertain, held erroneous as contradictory.
4. CARRIERS. Fact that evidence left cause of derailment uncertain did not alone render carrier liable to passenger for injuries.
The carrier did not by its evidence attempt to show or explain the cause of the derailment, but undertook to show that whatever may have been the cause, it was not due to negligence on its part or any failure to exercise the high degree of care required of it.
5. CARRIERS.
Jury must be able to say that carrier was guilty of negligence, to return verdict against it for injuries to passenger resulting from derailment.
APPEAL from circuit court of Leflore county; HON. S.F. DAVIS, Judge,
Gardner, Odom Gardner, of Greenwood, for appellant.
If the appellant as a carrier of passengers exercised the highest degree of care and diligence to discover and prevent a defect in its roadbed, track and train equipment and its agent in charge of such inspections and the operation of its train at the time were competent and skilled employees and performed their duties in this regard in a careful and prudent manner, then the presumption of negligence arising from our prima-facie statute must give way to the proof, and there is no liability on the part of the railway company because of the alleged injuries of the appellee. If the rule were otherwise, then carriers would be bound as insurers.
Central of Georgia Railroad Co. v. Robertson, 83 So. 102; 10 C.J. 953, 954; 5 Elliot on Railroads (3 Ed.), 2482; G. S.I.R.R. Co. v. Odom, 133 Miss. 543, 98 So. 60; Columbus Greenville R.R. Co. v. Cobbs, 156 Miss. 604, 126 So. 402; Allman v. G. S.I.R.R. Co., 149 Miss. 489, 115 So. 494.
The presumption furnished by the statute is only a prima-facie presumption. It must yield to the facts as shown by the evidence.
Allman v. G. S.I.R.R. Co., 149 Miss. 489, 115 So. 494; A. V. Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674; A.G.S. Ry. Co. v. Daniell et al., 108 Miss. 358, 66 So. 730; I.C.R.R. Co. v. Gray, 118 Miss. 612; Hines, Director General of Railroads, v. McCullers, 121 Miss. 666, 83 So. 734; G.M. N.R.R. Co. v. Hudson, 142 Miss. 542, 107 So. 368; G.M. N.R.R. Co. v. Brown, 138 Miss. 39, 102 So. 855.
The granting of the sixth instruction to appellee constitutes flagrant and reversible error. It is contrary, misleading and calculated to confuse the jury in this. The first part of the instruction advised the jury that the appellant could exonerate itself from blame by showing that it exercised the highest degree of care, but the latter part told them that the utmost skill and the highest degree of care were not a defense unless such evidence showed clearly the cause of the derailment.
In the second place, this instruction is clearly a peremptory instruction for the appellee.
The next fault with this instruction is that it does not correctly state the law as to the burden of proof. The carrier is not required to show by a preponderance of the evidence that it exercised the highest degree of skill, care, etc. It must only show the facts and circumstances, and then the question of liability must be determined from the facts and not from the statute.
A.G.S. Ry. Co. v. Daniell, 108 Miss. 358, 66 So. 370; Hines, Director General, v. McCullers, 121 Miss. 666, 83 So. 734; Davis, Director General, v. Elzey, 126 Miss. 789, 88 So. 630; Davis, Director General, v. Temple, 129 Miss. 6, 91 So. 689; G.M. N. Ry. Co. v. Brown, 138 Miss. 36, 102 So. 855; G. S.I.R. Co. v. Odum, 133 Miss. 543, 98 So. 60; Columbus Greenville Railway Company v. Cobbs, 156 Miss. 604, 126 So. 402.
O.L. Kimbrough, of Greenwood, for appellee.
It is for the jury to say whether the circumstances disclosed repelled the legal presumption of negligence arising where the passenger is injured by an overturned car.
Pa. Road Co. v. Weiss, 87 Pa. 447; Van v. Richmond, 259 Pa. 300, 102 A. 954; Cain v. Phil., 196 Pa. 502, 46 A. 893, 8 Am. Neg. Rep. 333; Shaughnessy v. Director General, 274 Pa. 413, 113 A. 390, 23 A.L.R. 1211.
Even if plaintiff offered no evidence to contradict that offered by defendant as to the cause of the accident, it remained, for the jury to say whether the explanation offered by defendant indicated the use of proper care in the maintenance of its road bed, and thus overcame the presumption of negligence.
Dowd v. Hines, 269 Pa. 182, 112 A. 528, Annotations, 23 A.L.R. 1212; Brown v. La. M. River Co., 256 Mo. 522, 165 S.W. 1060.
A presumption of negligence in regard to the condition of the track, road bed, or machinery, or in regard to the operation of the train, arises where injuries are shown to have been received by a passenger in a derailment accident, and places on defendant the burden of accounting for the derailment and showing that it was without negligence on the part of its employees, or that the accident could not have been prevented by the exercise of the highest degree of care, compatible with the prosecution of its business. But proof that the derailment occurred from some unaccountable cause has been held insufficient to overcome the presumption.
10 C.J. 1034, par. 1451.
The court, in the first sentence of Instruction No. 6, merely informs the jury that the defense of the railroad as shown by its notice under the plea of the general issue and as developed by its proof on the trial is termed an affirmative defense. Such being true, it necessarily devolves on appellant to establish that defense. The court so states, and correctly so, this requirement to the jury, informing the jury that appellee is entitled to recover provided the jury believes from the evidence that plaintiff was a passenger, that the coach in which she was riding was derailed and that she was thereby injured, unless it is shown by a preponderance of the evidence that such derailment was caused by a latent defect which defendant by the exercise of the highest degree of care could not have discovered. The last sentence of the instruction informs the jury that if the evidence leaves it uncertain as to the cause of the derailment the defendant has not met the burden cast upon it to overcome the prima-facie presumption of negligence. This instruction was correct.
Thompson v. Atl. Coast Line, 113 S.C. 261, 102 S.E. 11; Hines v. Beard, 130 Va. 286, 107 S.E. 717; Reems v. N.O.G.N.R. Co., 52 So. 681; Wade v. Houston S.R.R., 72 So. 220; Montgomery E. Ry. v. Mallette, 9 So. 363.
The last sentence of this instruction informs the jury that if the evidence leaves it uncertain as to the cause of the derailment the defendant is entitled to a verdict.
The instruction should be taken in its entirety and should not be dissected and considered piece-meal. A tortured and strained construction has been given this instruction by reason of the use of the word "cause," in the last sentence thereof. The word was not employed to advise the jury that it devolved on appellant to show the specific "cause" of the derailment, but presented to the jury the question of whether there was a concealed or undiscoverable defect as distinguished from an established one.
The appellee, Liza Phillips, instituted this suit in the circuit court of Leflore county, seeking to recover damages for personal injuries alleged to have been sustained by her as a result of the derailment of a train of the appellant company, upon which she was a passenger. The declaration was in two counts, the first one being predicated upon the alleged unsafe and dangerous condition of the train equipment, and the second alleging that the derailment was the result of the unsafe, dangerous, and defective condition of the roadbed and track at the point where the derailment occurred. Upon the trial of the cause there was a verdict and judgment in favor of the appellee for the sum of two thousand five hundred dollars, from which this appeal was prosecuted.
The appellee offered evidence to show that she had paid the fare and was a passenger on the appellant's train at the time it was derailed; that the coach in which she was riding was thrown from the track and many of the seats therein demolished; that she was thrown against a seat in the coach and thereby injured. She also offered the evidence of several witnesses as to the extent of her injuries, and the state of her health before and after the derailment.
The appellant introduced all of its employees who were connected with the operation of the derailed train, who testified in detail as to their observations of conditions made immediately after the derailment. The testimony of these witnesses was to the effect that appearances indicated that the trucks of the tender of the engine first left the track about one hundred yards east of a trestle; that the engine came to a stop on or just after it passed off this trestle, while the tender and baggage coach turned over on the south side of the track; that the coach in which the appellee was riding partially turned over on the same side of the track just as the front end of it reached the trestle: that the trestle was badly torn up and a number of rails were warped and twisted; that they examined the train and trucks of the tender and found no defect therein which could have caused the derailment; that they particularly examined the flanges on the trucks of the tender and found that they were not broken; that they examined the track at the point where the trucks had gone off the rails and found no apparent defect therein; and that from their inspections and knowledge of the condition of the train and equipment and roadbed they were unable to determine the cause of the derailment. The conductor also testified that the rules of the company required that trains be inspected before leaving the terminus at Columbus, Mississippi, and that he took charge of the train supposing that it had been properly inspected and was in good condition, and that the cursory inspections of the train made by him at Columbus and Winona, Mississippi, disclosed no defect therein.
A master mechanic from the yards at Columbus testified that the engine and tender had been in the yards at Columbus for some weeks prior to the day of the derailment; that he inspected them thoroughly on the day before they left Columbus; that they were then in good condition; that he inspected the entire locomotive and especially the trucks of the tender and found no broken flanges; and that he made a thorough inspection at the scene of the derailment to determine, if possible, the cause of it, but was unable to determine the cause. He also testified that the engine in question was purchased as a second-hand engine from the Mobile Ohio Railroad Company about twelve years before, and that the shops in Columbus were equipped to do all necessary repairs to locomotives.
The appellant also introduced its roadmaster, who testified that he was thoroughly familiar with track and construction work, and that he made a personal inspection of the lines of the appellant on an average of twice each week; that he made such an inspection on the 4th and 5th of February prior to the derailment on the 11th of that month, and again on the 10th of February; that on both occasions he inspected the track at the point of the derailment and found the rails, ties, and general condition of the track to be good. As to the nature of these inspections, however, he testified that they were made by looking at the track as he rode over it on a motor-car running about fifteen miles per hour, or from the rear platform of a passenger coach while traveling from thirty-five to forty miles per hour. He further testified that he made a thorough examination at the scene of the derailment on the day following it, and that he was unable to find anything in the condition of the track that could have caused it, and was unable to determine from his investigation why the tender trucks had jumped the track. He further testified that the track at that point was of standard construction; that the ties were what are known as treated ties and had been in use only about six months; and that the ballast used at that point was washed gravel. The section foreman in charge of the maintenance of the track on the section within which the derailment occurred was not introduced as a witness.
The first contention of the appellant is that the undisputed evidence introduced by it shows that it was guilty of no negligence, having exercised the highest degree of care and diligence as to every duty owing to the appellee, and consequently that the peremptory instruction requested by it should have been granted.
When the appellee showed by evidence that she was a passenger on the appellant's train and was injured by the derailment of the coach in which she was riding, a prima-facie presumption arose that the injury was due to the negligence of the company or its servants. To rebut this presumption the appellant offered evidence tending to show that it had exercised that high degree of care and diligence required of it in the transportation of passengers, and that it was guilty of no negligence which caused or contributed to the derailment. This testimony consisted of detailed statements of the employees as to their observations at the scene of the wreck, the frequency and nature and character of the inspections made of the locomotives and coaches and the roadbed, ties, and rails. No witness who was directly in charge of the construction and maintenance of the roadbed and track was introduced, and there was no evidence as to the time that should elapse between inspections of the roadbed and track, or as to whether the inspections that were made were sufficient and proper, or in accordance with proper and approved railroad methods and operation. The roadmaster testified that he had filled that position with the appellant for twenty-two years, and that so far as he knew no new rails had been placed on the track at the point of the derailment; that rails shrink and wear from use; and that he inspected the track about twice a week by observing it while riding over it on a motorcar traveling at the rate of twelve or fifteen miles per hour, or on a passenger train traveling about thirty-five miles per hour. Upon all the testimony, and particularly in view of the nature and character of the testimony of the master mechanic as to his inspections of the locomotive and tender, we think it was for the jury to say whether or not an inference of negligence should be drawn therefrom, and that consequently the peremptory instruction requested by the appellant was properly refused.
The appellant next complains of an instruction granted to the appellee, which reads as follows:
"The court instructs the jury that the defense of the railroad company in this case that the derailment of the coach in which plaintiff was riding was an accident which could not have been averted by the exercise of the highest care and skill is what is termed in law as affirmative defense. If you believe from the evidence in the case that plaintiff was a passenger on defendant's train, that the coach in which she was riding was derailed and that plaintiff was thereby injured, the plaintiff is entitled to recover to the full extent of such injuries, unless you believe from a preponderance of the evidence that said derailment was caused by a latent or concealed defect or condition which defendant by the exercise of the highest degree of care and utmost skill could not have discovered. If the evidence leaves it uncertain as to the cause of the derailment the defendant has not met the burden cast upon it to overcome the prima-facie presumption of negligence above stated, and in such case plaintiff is entitled to a verdict in such sum as the jury believe from the evidence will compensate her for all damages sustained by her."
This instruction is in effect peremptory, and is erroneous for several reasons. In the first place, it is contradictory, in that it informs the jury that the appellee could not recover if it believed from a preponderance of the evidence that the derailment was caused by a latent or concealed defect or condition which the railway company could not have discovered by the exercise of the highest degree of care and utmost skill, while in the next sentence the jury were instructed that "if the evidence leaves it uncertain as to the cause of the derailment the defendant has not met the burden cast upon it to overcome the prima-facie presumption of negligence above stated, and in such case, plaintiff is entitled to a verdict in such sum as the jury believe from the evidence will compensate her for all damages sustained by her." It thus appears that the jury was, in the first sentence quoted, advised that the appellant could exonerate itself from liability by showing that it exercised the highest degree of care; while in the next sentence it was informed that the utmost skill and the highest degree of care would not free the appellant of liability unless such evidence showed clearly the cause of the derailment, and consequently the jury was thereby left without any proper guide.
This instruction is likewise erroneous, in that it advised the jury that the appellee was entitled to recover "if the evidence leaves it uncertain as to the cause of the derailment." Under the evidence offered in this case, this statement in the instruction made it peremptory in favor of the appellee, as no witness undertook to give the cause of the derailment, but on the contrary they all testified that they were unable to determine the cause thereof. It is not true that the appellee is necessarily entitled to a verdict if the evidence offered by the appellant leaves it uncertain as to the cause of the derailment. In this case the appellant did not, by its evidence, attempt to show or explain the cause of the derailment, but it undertook to show that whatever may have been the cause of the derailment, it was not due to negligence on its part or any failure to exercise the high degree of care required of it, and before the appellee would be entitled to a verdict the jury must be able to say from the attendant facts and circumstances in evidence that the defendant was guilty of negligence in failing to exercise the degree of care required of it. Alabama G.S.R. Co. v. Daniell, 108 Miss. 358, 66 So. 730; Gulf S.I.R. Co. v. Odum, 133 Miss. 543, 98 So. 60, 61.
In the latter case the court stated that the explosion which caused the injury was "an unexplained mystery," but held that the attending facts and circumstances shown by the evidence completely rebutted the presumption of negligence of the defendant in reference to the injury, and that "it excluded any and all facts and circumstances tending to place responsibility for such explosion upon appellant," and that consequently the trial court should have granted the peremptory instruction requested by the defendant. In the case at bar we are of the opinion that it was for the jury to say whether an inference of negligence should be drawn from the attendant facts and circumstances shown by the evidence, but for the error above indicated the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.