47 So. 518 | Miss. | 1908
delivered the opinion of the court.
This action is by Jennie Owens, a minor, about nine years of age at the time of the injury, through her next friend, for $15,-000 damages for an injury charged to have been negligently inflicted upon her by the appellee. At the conclusion of the testimony, the court, upon motion of appellee, excluded the testimony of the plaintiff, and gave a peremptory instruction for the defendant, and this is assigned for error. This case is a very delicately balanced one upon its facts, and therefore a careful statement of the case will be made.
The father of the plaintiff had been a section foreman. He was. at the time of his injury the foreman of an extra gang.
It is very earnestly insisted by the appellee that these three persons had used this plank for three weeks constantly just prior to this injury, and that no accident had happened during that time, and that no complaint had been made of the plank as unsafe, and that from these and other circumstances it was clear as a matter of law, that this plank, constituting the passageway, was a reasonably safe passageway; but this argument fails entirely to take account of the very important facts that there had been overnight a complete change in the character of the track on which these camp cars were left to stand. The first place had been level and properly constructed;.the second was. unlevel and slanting, and not ballasted—most material differences, entering into the question of the safeness, of this plank used as it was. It might have been safe possibly under favorable conditions as to the levelness of track, and unsafe wdiere it spanned the distance between two tilted cars; and a plank so small might ivell have been seriously influenced by slight changes of this sort as regards its safeness for such use. There is nothing in the evidence, it must be remembered, to contradict the positive statement of the girl that her fall was directly due to the tilting of the plank, and that that was directly due to the fact that one rail was higher than the other; in other words, that
See, as directly in point on the foregoing proposition, the following case: St. Joseph, etc., R. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461. Indeed, we touch the crux of this case, reviewing the action of the court, which decided as a matter of law that she had no cause of action, when ve determine what grade of care under the law the company was under the duty of exercising towards her situated as she was. We are clearly of the opinion that the degree of care was more than the duty of not willfully injuring her, that the company was due her ordinary care, and this, of course, brings us squarely to this question: The company owing the plaintiff the duty of ordinary care, was not the question whether that degree had been used, as shown by the evidence in the case, a question of fact, pure and simple, for the solution of the jury, and not a question of law for the court ? Undoubtedly it was a question of fact, and the court clearly erred in not submitting that question of fact to the jury, under propér instructions, for its solution.
We have not often seen a case in which what we have said in in the case of Bell v. Southern Railroad Company, 87 Miss. 234, 30 South. 821, fits so perfectly. We there said, and we repeat it here once more, hoping that more heed may be given to it in the future, as the thoroughly safe rule for the guidance of courts below touching this matter: “So many questions are integrated usually into the solution of the question of negligence, it is so necessary to carefully examine all the circumstances making up the situation in each case, that it must be a rare case of negligence which the court should take from a jury.” We think this case falls peculiarly within the principle just declared, and that there was error, and that it was fatal error, for the court to undertake to determine, as it did, as a matter of law the question ■of pure fact, whether the company had exercised towards this plaintiff under all the facts in evidence ordinary care.
Wherefore the judgment is reversed,' and the case remanded for a new trial. Reversed.