Meridian Terminal Co. v. Stewart, 108 So. 496

108 So. 496 | Miss. | 1926

^* Corpus Juris-Cyc. References: Carriers, 10CJ, p. 916, n. 54; p. 919, n. 73; p. 1028, n. 92; p. 1059, n. 52. The Meridian Terminal Company maintains a union passenger station at Meridian, Miss., which is used by several railroad companies, one of which is the appellant the New Orleans Northeastern Railroad Company. Concrete walks are along the tracks on which trains enter the yard at this station, and from these walks other concrete walks lead to the gates through which persons going to and coming from trains must pass The appellee, after disembarking from one of the trains of the appellant railroad company on which she had been a passenger, stumbled and fell over a brick lying on the concrete walk along the track on which the train from which she disembarked was standing. For the injury resulting to the appellee from this fall, she obtained a judgment against the appellants, and they have appealed to this court.

It was the appellants' duty to maintain the cement walk on which the appellee fell in such condition that it could be used with safety by persons going to and coming from trains on which they intended to become or had been passengers (and we will assume for the sake of argument that they should have exercised the highest degree of care so to do, Railroad Co. v. Daniels,96 Miss. 314, 50 So. 721, 27 L.R.A. [N.S.] 128; Railway Co. v.Smith, 103 Miss. 150, 60 So. 73; Railroad Co. v. Small,113 Miss. 857, 74 So. 681), but the burden of proving that they failed to exercise such care was on the appellee; and in order for her to recover for the injury of which she complains it must appear from the evidence that the brick (1) was placed on the walk by a person for whose conduct the appellants are responsible, or, (2) had been on the walk for a sufficient length of time for the appellants to have discovered and removed it by the exercise of due care. 10 C.J. 916-919.

The evidence does not disclose how the brick over which the appellee fell came to be on the cement walk or how long it had been there. The only evidence by which the appellee attempted to prove either of these facts was that several days prior to that on which the appellee was injured, an excavation was made across the walk on which she fell in order that a drainpipe thereunder might be repaired, and that the material then removed from the walk was piled thereon, but whether at or near the place where the appellee fell does not appear. The witness who gave this testimony could not say that he saw any brick in the material which he says was piled on the walk, and it appears from undisputed evidence introduced by the appellants that these cement walks contain no brick. This evidence is insufficient to enable a jury to say that the brick over which the appellee fell was in the material removed from the walk and piled thereon several days before the appellee was injured.

The peremptory instruction requested for the appellants should have been granted.

Reversed, and judgment here for the appellants.

Reversed.