Southern Railway Co. v. McLellan

| Miss. | Mar 15, 1902

Terral, J.,

delivered the opinion of the court.

Hpon the trial of the case in the circuit court the appellant offered several objections to the proceedings, which were overruled.

(1) It offered to show that the material used by it for ballasting its roadbed at Huntington switch, where the injury occurred, was like material as that commonly used by other railroad companies in ballasting their roads; and this offer was denied. (2) As a further circumstance relating to the question of negligence charged against it, it offered to show that no injury had ever occurred at Huntington switch by reason of any defect in its way at that point; and this offer was also excluded. (8) The appellant objected to the proof made by the plaintiff that he was poor; had no property and no money, (I) It also objected to his evidence that at time of receiving his injury he was performing extra duties, the train being short of hands, though the injury is not claimed to have occurred in consequence thereof. (5) The defendant’s counsel was denied the right to argue the want of any evidence of an injury along Huntington switch as a circumstance tending to show that the roadbed of the switch track was properly ballasted, to which he excepted. (6) And it complains that it was not permitted to prove that the plaintiff, shortly after his hurt, said to Dr. Toombs that no one was to blame for his injury, and that it was purely accidental. And in these several respects we think the appellant has reasonable ground of complaint.

The statement of McLellan to Dr. Toombs that his hurt (a sorely grievous one) was an accident, and no one was to blame for it, was probably intended to express his opinion that no one engaged in the operation of the train was to blame for it, and it perhaps did not relate to the question whether the track constituting Huntington switch was or not negligently constructed by reason of too large pieces of slag used in ballasting it; which is the gravamen of the complaint- — the servants of appellant being entitled to a reasonably safe roadway; yet the statement of a party hurt in relation to it, in a suit for damages therefor, is always admissible in evidence for such consideration and value as the jury may give it.

The offer of defendant to show that other responsible railway companies used slag to ballast their roads tended to rebut any inference- that the defendant was negligent in the mere use of slag on its roadbed, and for this purpose that item of evidence was admissible, leaving to the jury the question whether the method of the use of the slag was negligence or not. Nor the common use of slag for ballast by other roads is an argument that the use of slag itself is not negligence. It is its character as applied, as large or small, that gives room to the consideration of negligence in its use. The rejected evidence related in some degree to the general question of negligence of the defendant company, and should have been received.

The offer of defendant to show- that no accident had ever before happened at Huntington switch bore also, as we think, upon the same question. Wats. Dam., sec. 156.

The evidence that the train was short of hands should not have been admitted, as it is not insisted that that was a contributing element to the injury.

And we do not perceive the ground of denying appellant’s counsel the privilege of arguing to the jury, as a circumstance in its favor, the long and safe use of Huntington switch by its trains after it had been ballasted with the slag in question.

That the plaintiff was poor was not a matter to be placed before the jury. Wats. Dam., sec. 620. As some, or all, of these errors may have entered into the finding of the jury, we have, after long reflection, concluded that the case should be reversed.

Reversed and remanded.