100 So. 581 | Miss. | 1924
Lead Opinion
delivered-the opinion of the court.
This action is by Sam B. Dennis against the Meridian Light & Bailway Company, appellant, for damages fox-personal injuries alleged to have been sustained ifv him while in the employ of the appellant company, and from a judgment in favor of the plaintiff for seven thousand five hundred dollars the railway company prosecuted this appeal.
The facts in this record, ixx so far as they are material to a decision of this case, are substantially as follows :
At the time of the injury the appellee was employed by the appellant as “barn man,” which position he had held for three months, and previous to that time he had been employed by the appellant as lineman and trouble man. The appellee’s duties required him to do the light repairs oxx cars, and other work around the barn, and also to act as motorman ixx carrying a car to the end of the lixxe each morning and afternoon for the purpose of transporting other employees- to and from their work, and also, when the occasion required, to run a. car over the line of the railroad for the purpose of removing
The appellee further testified that he went forward to a point near where the linemen were repairing a broken trolley wire.; that when this repair was completed the superintendent of the company directed him to go to a telephone and order the employees at the power house to turn the power on; that he went to a telephone and gave the order, but they refused to obey the order, for the reason that, under the rules of the company, the power would be turned on only when ordered by the employee who had ordered it turned off; that he reported this refusal to the superintendent; that the superintendent then went toward the telephone, and he, the appellee, went towards his car, which was standing sixty or seventy feet away; that he stopped about thirty feet away from his ear, and talked for a minute or two with Mr. Rollins, the motorman on the car which was standing immediately in front of his car; that when he was fifteen or twenty feet from his ear he noticed it moving forward; that he then ran to the door of his car, and, finding it closed, tried to get it open; that, failing in this, he ran around in front of the car and climbed upon the drawheacl, and reached through the front window and shut off the controller by moving’ the handle into the neutral position, and partially applied the brakes, when his car struck the car ahead, catching his leg between the cars and injuring him. The appellee further testified that his car was a light car about twenty-five feet long, while Rollins’ car immediately ahead was a heavy, open, summer car, about fifty feet long; that when bis car started forward Rollins was standing in the rear of this long car, and that when he (the appellee) ran, to the door of his car Rollins ran toward the front end of his
For "the defendant, Rollins, the motorman on the middle car, testified that when the power came on, indicated by the lights on his car coming on, the appellee was standing on the sidewalk some feet away from his car; that he (Rollins) was sitting in his car nearer to the front than the rear; that when the power came on he heard appellee’s car start forward; that he jumped up and started to the controller of his car for the purpose of endeavoring to move his car forward to prevent appellee’s car from running into his if possible; that when appellee’s car was five or six feet away from his car he saw the appellee jump up to the front window of his car; that he tried to reach his controller and start his car foiward, but before he could do so appellee’s car struck his, the collision occurring just as he reached the platform of the car and before he could do the things necessary to start the car, which, he testified, was a heavy one, and had just entered a curve.
The appellee’s declaration, which was in four counts, set forth in great detail the facts leading up to the injury, and alleged that it was the duty of the appellee, under the terms of his employment, to look after the car Avhich had been intrusted to him, and that his action in jumping on the front of the moving car in an effort to stop it was prompted by a desire to prevent injury to the property of defendant and to the persons on the car ahead, and that because of the peril to the property and passengers appellee failed to appreciate the danger incident to his act, and the acts of negligence charged, and upon which appellee seeks an affirmance of the judgment, may be summarized as follows:
First. That the defendant had promulgated no rule or method of advising appellee and its other employees just when the electric current would be turned into the wire.
Third. That Rollins, the motorman on the car next ahead of the car in charge of the appellee, saw the perilous position of the appellee while leaning in the window of said car and attempting to put the brakes on, and that Rollins could have easily moved his car forward and avoided the injury to appellee, but that he negligently failed to do so.
There was testimony to the effect that the method of notifying the motorman when the current came on after it had been turned off was for the motorman to turn the light switch on the car so that the lights would shine when the current came on; but, conceding for the sake of argument that this method was insufficient, and that the failure of the defendant to have a better system of signals would render it liable to an employee who was injured on account of this failure and on account of not ' having sufficient notice that the current was to be turned on, this cannot aid the appellee, for the reason that he had actual notice of the fact that the current was to be turned on at any moment. The appellee was an experienced lineman, having had seven years’ experience as lineman and trouble man for the defendant, and one of his duties in that connection had been to repair and handle broken trolley wires and interruped electric currents, the thing that was being done at the place of the accident, and for the completion of which the appellee and the cars were waiting. The appellee must have known from his long experience in that line of work that as
The appellee next contends that the judgment should be sustained under the doctrine of the last dear chance,, in that the motorman Bollins negligently failed to move his car forward after he discovered appellee’s position of peril, and appreciated that he could not extricate himself. Conceding for the purpose of this decision that this doctrine applies to the facts in evidence here, there is no testimony in the record tending to show that this motorman was guilty of negligence in this regard, or from which the inference of negligence may be drawn, and the verdict cannot be sustained on .this ground. If Bollins’ testimony is accepted, and it is uncontradieted by any testimony or any fact or circumstance in evidence, he did not fail in any possible duty which he owed to appellee after he discovered his position of peril, and was guilty of no negligence in failing to move his car forward after he discovered that appellee’s car was mov
Finally, the appellee contends that the statute making-proof of an injury by the running- of a street car primafacie evidence of negligence in reference to such injury required the submission of the case to the jury. Section 1645, Hemingway’s Code. ' j.
All the facts and circumstances under which the injury was inflicted are fully shown in the evidence, and this presumption of negligence created by the statute must yield to the facts, and we think the facts, which are undisputed, clearly exculpate the defendant company of negligence in reference to this accident, and that,
The judgment of the court below will therefore be reversed, and judgment entered here for the appellant.
Reversed and judgment for appellant.
Dissenting Opinion
(dissenting).
The appellee testified that the railway company gave him no instructions with reference to the operation- of street cars where there was a break in the wire and the necessity thereby to stop1 cars and repair the wire, and that he did not know of the custom or rule of the com-, pany that gave notice that the wire was repaired' by the coming on of the lights, which indicated that the current had been turned and was not an indication that the current was to be turned on. He testified that there was a signal blown at the power plant whenever the wire was broken and it was necessary to turn the current off. He testified that they gave him no instruction as to how to disconnect the electricity from the car so that it would not move the car and still would light the car. In other words, he had no instruction as to the rule of the company’' or custom of the company at all in reference to the matter here involved. He did have some limited experience in operating the car under ordinary conditions, but was not acquainted with the methods of operation where it was necessary to cut the power off and repair the break in the wire. There is nothing in the record to show that he had any such knowledge, and he testified that he did not have it. There is nothing to show that he knew the custom! of the company. When the superintendent directed the appellee to go and ordered the power turned on lie'was informed that it would not be turned on except on the order of the person who ordered it cut off, and there is nothing to show that he knew the power would be turned on immediately, and that no signal would be given. The proof was ample for the plain
As to the last clear chance proposition, I also think there was sufficient proof to carry the case to the jury. The. plaintiff testified that he was' talking to the motorman on the car ahead, and saw his own car begin to move, and that he ran to the car. The facts are sufficient in my judgment to show that the motorman on the car ahead also saw the car approaching and knew that it was unattended and knew the danger of collision, and that reasonable prudence should have ^caused the motorman to move his own car so as to diminish the force of collision, or if he could to prevent collision at all. The plaintiff’s testimony I think shows clearly that, if the conductor on the car ahead had promptly attempted to move his car, the accident could have been avoided.
I think the majority opinion proceeds upon an assumption that the plaintiff had knowledge of the operation and condition and practices in' such cases, which proof wholly fails to show that he did have and which he testifies that he did not have. Consequently, I think the question of liability was for the jury.