Yazoo & Mississippi Valley Railroad v. Hawkins, 61 So. 161

Yazoo & Mississippi Valley Railroad v. Hawkins

61 So. 161 | Miss. | 1913

Reed, J.,

delivered the opinion of the court.

Appellee brought suit against appellant, claiming damages on account of personal injuries sustained while he was employed as a brakeman on a freight train. Appellee attempted to. board the pilot of the engine by stepping on a small step attached to the pilot while the train was going about five miles per hour. He missed his footing, caught hold of the rihs of the pilot, where he clung for a short space, and fell, and one of his legs was run over and practically severed by the wheels of the pony truck. As soon as he fell, the engineer applied the air brakes, and the train was stopped in a distance of about one hundred feet. The negligence claimed against appellant was that all of the air brakes on the train were not in proper working order; that some of the brakes were put out of condition by reason of an accident after the train had *72started on its trip that day; and that if all the brakes had been working properly, the train eonld have been stopped before appellee rolled off the pilot.

It is shown in the testimony that, notwithstanding the accident, the train was still equipped with seventy-five per cent, air pressure, the amount required by the Interstate Commerce rules and regulations; that this rendered the operation of the train reasonably safe. It also appears that everything possible was done by the engineer to stop his train immediately after appellee had fallen, which fall was because of appellee’s misstep.

A careful review of this case causes us to conclude that the railroad company was not guilty of negligence towards appellee, and did not fail in the duty it owed him to a degree that would entitle, him to a judgment for damages. It seems to us that this is a case where the injury to the unfortunate man resulted from an accident only. We do not believe the evidence shows that appellant should be held in damages for the injury to appellee by reason of this accident. We believe that appellant should have been given the peremptory instruction asked at the end of the trial.

Reversed and dismissed.

Opinion on Suggestion oe Error.

Cook, J.,

This suggestion of error was predicated on the following" grounds, upon which appellee relies for an affirmance of the case, and the setting aside of the former judgment of this court, to wit:

“I. The judgment of reversal overlooks or misconceives the proposition of negligence upon which the case was prosecuted and defended in the trial below, and upon which the jury found its verdict and the trial court its judgment. The case was not tried below on the theory that insufficient brake equipment ivas the cause of the delay.

*73“II. The judgment overlooks or fails to consider the credible and reasonable testimony of witness Wood-ruff, who testified that the tram could and should have been stopped in ten feet, to plaintiff’s safety, instead of negligently running one hundred feet, to plaintiff’s injury. This was the strongest positive evidence affirmatively showing appellant’s negligence as the cause of the injury.

“III. The judgment of reversal overlooks or fails to consider the fact and truth, appearing of record in part, that the trial below — the evidence, the argument, etc.— centered and revolved around the proposition that appellant could and should have stopped the train before appellee’s injury, and that, if the train had been slopped within a reasonable distance, the injury would have been avoided.”

With reference to the first ground, it is sufficient to say that the court did not overlook the theory upon which the case was prosecuted and defended in the trial below. However, the court did not deem it controlling upon this court how the case was presented in the court below; but the court endeavored to try the case upon the record as made by the pleadings and evidence in the court below, and to base its decision thereon.

We did not overlook the testimony of the witness Woodruff. In deciding the ease, it was assumed that Mr. Woodruff was stating the facts; but, in view of the fact that the braking power of the train was caused by an. accident occurring between the terminal points of the railroad, and in view of the fact that the defects could not be repaired before the train had reached the terminal points, we decide that to operate the train with its lessened braking power was not negligence, especially when the record shows, without dispute, that the train still had the amount of braking power required by the laws of Congress.

*74It may be proper to add that tbe theories adopted by the lawyers in the trial court are not always decisive of the real point involved in the case as made by the record, and this court always reserves to itself the right to ignore the theory upon which the case was tried, in order to preserve the legal'rig’hts of the parties disclosed by the record of the pleadings and testimony in the case.

The suggestion of error is overruled.