Natchez & S. Ry. Co. v. Guice

101 So. 439 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

The appellee was plaintiff in the court below and brought suit for a personal injury against the appellant.. The plaintiff was .a broker, and had consigned to him at Natchez, Miss., certain cars of merchandise, which were placed upon the track used by the defendant for placing cars so that customers could procure their merchandise from the cars for" unloading the same. Plaintiff was in the car in question unloading certain merchandise, and while he was in the car the car was removed from the storage tracks upon which it was situated to another storage track and placed upon the second track, and the engine had been disconnected and moved away, but returned and backed into the car in which the plaintiff was superintending the unloading, and struck the car with such force and violence that it threw the plaintiff down and caused the boxes of merchandise to fall upon him, inflicting the injury for'which he sued. The plaintiff’s version of the affair is that it was the custom for many years for customers to unload their merchandise by this method ; that the servants of the defendant knew he was in.the car at the time it was struck; that, the striking was of such force and violence as to be negligence on the part of the defendant. The proof for the defendant showed that the servants of the defendant knew that plaintiff was in the car; one of the employees testifying that the plaintiff requested permission to remain in the car, which was granted to him. The depot agent, who had general control, also testified that it was customary for parties to unload cars in the manner above indicated, and that defendant permitted people to ride in the car while it wa^ being moved from one place to another for the purpose of unloading, and that plaintiff had a right to be in the car at the time he was injured. One of the employees of the defendant testified that, right after the alleged injury, he went to the car and looked in, and that plaintiff claimed to be injured, but denied that the boxes were) disarranged, or that any of them had fallen out of place. The plaintiff is supported in his version of the affair by some truck drivers, who were loading the trucks from the cars; while the servants of the defendant denied that the impact was violent or negligent, or that any unusual force was used in making the connections and movements.

It is urged that the court below erred in refusing the following instruction, requested by the defendant:

“The court instructs the jury, for defendant, that if they believe the cars were cautiously and prudently handled, and the company was not negligent in the handling of same, but that the injuries to CVIr. Guice, if any, were caused solely by the arrangement and stacking of the cases on the inside of the car, which condition was known to him, and brought about by himself or under his direction,' and the company did not know of such added danger, if any, brought about by Guice himself, or under his direction, in rearranging the cases inside the car, if Guice’s handling of the cases and stacking, parts thereof, so that there was added danger, then he is responsible for any injury he may have received, by loose cases falling on him, and not the railroad company, and in such case your' verdict should be, ‘We, the jury, find for the defendant. ’ ”

There was no evidence that Guice had rearranged the boxes in the car. The only evidence is- that he had taken some of them out, but the manner in which the remainder were left in the car is not shown by the record in any such manner as to indicate that Guice’s action had made the situation more dangerous than it was as loaded when handled by the railroad. Furthermore, it is not the position of the defendant in the trial that Guice had produced a situation of this kind, but the witness for the defendant testified positively that after the alleged injury the cases were not disturbed or thrown down, but were inta,ct in position and all right. In other words, the defendant disputed the facts claimed by the plaintiff to have caused the injury. .

We find no merit in the other assignments of error.

Affirmed.