Gulf & S. I. R. Co. v. Odum

98 So. 60 | Miss. | 1923

' Anderson, J.,

delivered the opinion of the court.

Appellee, J. A. Odum, received an injury by means of an explosion from an unknown cause while a passenger on one of the trains of the appellant, Gulf & Ship Island Railroad Company, and sued for damages, therefor and recovered judgment, from which the appellant prosecutes this appeal.

The essential facts out of which the questions presented arise are as follows: On the 2'lst of January, 1922, ap-pellee purchased a ticket at Columbia, a station on appellant’s line, for ^passage to Lumberton, another station on appellant’s line, and boarded appellant’s passenger train at Columbia for the purpose of being so transported. He entered what is commonly known , as the “white smoker,” being a compartment composed of one end of -a car set ¿side fdr white passengers to occupy while smoking; and using his own words, “I went in and sat down and just as I sat down up went the explosion.” The explosion according to the appellee’s testimony- was accompanied by a flash of fire and a loud report like a shotgun. It resulted in throwing appellee down in the aisle and injuring him.' No one else was in the smoking car at the time of the explosion. The windows of the car were down and the heat was on. Persons outside heard the explosion and went in and made an examination. They found no evidence of any kind whatever of an explosion having taken place except when they entered the ca-r they smelled something like exploded powder or dynamite.

Appellee testified that the explosion took place as it appeared to him down near the steam pipes which heated the car. No débris was found, nor smoke or other sign on the floor or about the seat where the appellee was sitting, or the steam pipes or elsewhere indicating an explosion. Appellee testified that he had no explosive about his person; that he did not cause the explosion; nor did he know what it Avas that exploded. In other words, so far as the evidence goes, the explosion was simply an unexplained mystery. There was not the slightest clue as to what exploded or what caused the explosion.

Appellee to- make out his case relied on the primá-facie statute, section 1985, Code of 1906 (Hemingway’s Code, section 1645), and also on the doctrine of res ipsa loquitur.

Appellant, conceiving the court might hold that by virtue of said prima-facie statute or the doctrine of res ipsa loquitur a presumption of negligence on the part of appellant arose giving appellee a case for the jury, undertook to exculpate itself from any such presumption by showing that it was without fault. With that end in view appellant showed, in addition to what is stated above, that the explosion and injury took place between nine and ten o’clock in the morning; that the train on which appellee was a passenger ivas made up that morning at Jackson, the northern terminus of appellant’s line of railroad; that before going out the car in Avhich appellee was injured, with the balance of the coaches, ivas cleaned and inspected; that when said train left Jackson on the morning of the injury there was no explosive substance of any kind in .the car in which appellee was-injured.

The court below, at the instance of appellee, instructed the jury under section 1985, Code of 1906 (Hemingway’s Code, section 1645), that proof of the explosion was prima-facie evidence such explosion was caused by the negligence of appellant. Appellant contends that the giving of such instruction was error, because no presumption of negligence could arise in the absence of evidence (and there Avas none) that the explosioh causing the injury resulted from the operation of appellant’s train on which appellee Avas at the time a passenger.

In the vieAV we take it is unnecessary to decide whether or not proof of the explosion in question carried with it a presumption of negligence either by virtue of said prima-facie statute or the doctrine of res ipsa loquitur.

Conceding that there Avas such a presumption of negligence on the part of appellant, still Ave are of opinion that appellant has completely exculpated itself therefrom! The presumption of • negligence afforded by said statute, as Avell as that arising from the doctrine of res ipsa loquitur, may be met and overcome by negative as Avell as positive evidence. Attending facts and circumstances completely rebutting without conflict the presumption may be shown, or the absence of any fact or circumstance from which negligence could be reasonably inferred may be shown. It is true that the evidence in this case showed nothing of the attending facts and circumstances except the explosion and injury; still it excluded any and all facts and circumstances tending to place responsibility for such explosion upon appellant. The evidence of exculpation of appellant of any fault is complete and uncontradicted.

We are therefore of opinion that the trial court should have granted appellant’s request for a directed verdict.

Reversed and judgment here for appellant.

Reversed.