Allman v. Gulf & S. I. R.

*500 Anderson, J. Appellant filed the bill in this case in the chancery court of Marion county against appellees, the Gulf & Ship Island Railroad Company, a Mississippi corporation, and the Great Southern Lumber Company, a foreign corporation, to recover damages for an injury to his foot, caused by appellees’ alleged negligence. Jurisdiction was acquired of appellee Great Southern Lumber Company by an attachment in chancery levied on lands owned by it in this state. The case was tried on bill, answers of appellees, and proofs, resulting in a decree dismissing appellant’s bill. From that decree, appellant prosecutes this appeal. The railroad of appellee Gulf & Ship Island Railroad Company runs through the city of Columbia in a northwesterly and southeasterly direction. In the late afternoon and early evening of January 12, 1926, one of the logging trains of appellee Great Southern Lumber Company was on the tracks of appellee Gulf & Ship Island Railroad Company within the corporate limits of the city of Columbia. One of the public crossings over the tracks of the railroad in Columbia is High School avenue crossing, and at that crossing appellant claims to have *501 been injured. Appellant and Ms brother, Henry Allman, were the only eyewitnesses. They testified that they were returning from the home of the family washerwoman, where they had been sent by their mother to deliver a message to her; that they undertook to cross the railroad tracks at the High School avenue crossing; that a freight train headed north was standing on the tracks of the railroad north of the crossing,, the caboose of which was near the north line of the crossing; that it was about six o’clock on the evening of January 12,1926, and therefore after dark, when they attempted to go over the crossing; that when appellant went up on the railroad tracks, the freight train gave a violent lurch backwards, its caboose striking the appellant and knocking him down; that while in that position, one of the wheels of the caboose ran over his foot, crushing two or three of his toes so badly that it was necessary to amputate them. Appellant and his brother testified that this violent lurch of the train occurred without any warning to them; that there were no lights on the rear of the train; no signal was given to show any intended movement of the train; and that there was no employee connected with the train who gave any notice that the train was going to move. Appellees undertook to show by evidence, largely circumstantial, that it was impossible for appellant to have been injured at the time and the place and in the manner testified to by the appellant and his brother. Appellees, conceiving the idea that under the law the burden might be on them, to meet the presumption of the prima-facie statute, section 1985, Code 1906 (section 1717, Hemingway’s 1927 Code), undertook to show by their evidence where and how the injury to appellant did occur. Appellant, after his injury, was found about three hundred feet north of the High School avenue crossing. Appellees showed by every person known to have any knowledge of the pertinent facts, including the crew in charge *502 of the freight train which, appellant claims, injured him, that it was impossible for appellant to have been injured at the time and place and in the manner testified to by the appellant and his brother. By the evidence introduced, it was shown that on the day of the injury the freight train causing the injury only backed over the High School avenue crossing once while it was in the city of Columbia, and that occurred about five o’clock in the afternoon instead of six o’clock, when appellant claims to have been injured; that in bacldng over the crossing, Byrd, one of the brakemen in charge of the train, was on the rear of the caboose, on the lookout to prevent injury to persons on or near the railroad tracks; that when the caboose backed over the crossing, neither the appellant nor any other person was on or near the crossing, and therefore no person received an injury at the crossing. The evidence tended to show further that if appellant was injured by the running of any train on the afternoon or evening of January 12, 1926, it was the logging train belonging to appellee Great Southern Lumber Company, and, if injured by that train, his injury was bound to have taken place not in front of the engine or in the rear of the caboose, but between the engine and the caboose. Appellees, over the objection of the appellant, offered evidence of witnesses, which the court admitted, to the effect that appellant had for several months, perhaps a year, before the injury sued for occurred, been in the habit of “hopping” moving trains passing over the tracks of appellee Gulf & Ship Island Bailroad Company, in the City of Columbia. One of the principal grounds assigned and argued for the reversal of the decree appealed from is that the court erred in admitting that character of evidence. The issue of fact was whether or not appellant was injured at or about the time and place and in the manner testified to by himself and brother. In order to meet that issue, appellees undertook to show: First, that it was impossi *503 Me for appellant to have received the injury at or about the time and place and in the manner testified to by himself and his brother; and, second, that if appellant was in fact injured by the train, the injury could not have occurred otherwise than as the result of appellant’s trying to “hop” the train. The probative value of habit or custom is discussed in Wigmore on Evidence (2 Ed.), in sections 92 to 102, pages 325 to 336, inclusive. We quote, in part, what is there said: “ Section 192. General Principle.—Of the probative value of a person’s habit or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day’s experience and reasoning make it clear enough. There is, however, much room for difference of opinion in concrete cases, owing chiefly to the indefiniteness of the notion of habit or custom. If we conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life a habit or custom seldom has such an invariable regularity. Hence, it is easy to see why in a given instance something that may be loosely called habit or custom should be rejected, because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most instances. Whether or not such sufficient regularity exists must depend largely on the circumstances of each case. “Section 93. Miscellaneous Instances.—Subject to the foregoing distinctions, the admissibility of a person’s habit, usage, or custom as evidence that he did or did not do the act in question may be said to be universally conceded. Yet the distinction named, as well as the individual circumstances going to affect the regularity of the habit, will from time to time effect its exclusion. Courts *504 vary, moreover, in their liberality of application of the principle. . . .” “Section 97. H\obit of Negligence or Care.—Negligence is, in one aspect, the not doing of a particular act; but in another and more correct aspect, it is the doing of one act in a manner which amounts to negligence in that some other act is omitted which ought to have accompanied it. There is no reason why such a habit should not be used as evidential—either a habit of negligent action or a habit of careful action.” Numerous authorities are cited by the author in support of the text quoted. Some of them are abstracted in the notes. They sustain the principles laid down in the text. This question has not been decided by our court. In Miss. C. Railroad Co. v. Miller, 40 Miss. 45, which was an action against a railroad company to recover damages for the killing of live stock by the negligence of the employees of the company, the court held that it was not competent to show that the employees of the railroad had at other times and on other trains than the one causing the injury exhibited a want of reasonable and proper care, and that the evidence should be confined to the want of such care at the time of the injury. In Railroad Co. v. Crayton, 69 Miss. 152, 12 So. 271, it was a controverted question whether a train followed another train after a definite interval of time. The court held that it was competent for the railroad company to show by evidence, in support of other evidence, that the company had a-rule which forbade a shorter interval of time between the departure of its trains from a station than a certain named interval. Thompson v. Yazoo & M. V. R. Co., 72 Miss. 715, 17 So. 229, was an action against the railroad company for injuries sustained by the plaintiff, a boy, thirteen years of age, who was a trespasser on a moving freight train, having jumped therefrom, and was hurt. The court held that it was competent for the railroad company to show *505 by evidence that the plaintiff and his companions were in the habit of getting on and off of moving trains with safety, and that this evidence was material on the question whether the conductor in charge of the train from which plaintiff jumped was wantonly and wilfully negligent in ordering plaintiff to get. off the moving train. In A. & V. Railway Co. v. Thornhill, 106 Miss. 387, 63 So. 674, this question was stated in the opinion of the court, but not decided. The court said: “ “According to the evidence of eyewitnesses introduced in behalf of appellee, he was at the time of the accident standing on appellant’s railroad track at its intersection with a street in the city of Jackson, watching a baseball game, when one of appellant’s trains, without warning by bell or whistle, and when he was wholly unconscious of danger, approached him from the rear, struck him in the back, and injured him. According to the testimony of other eyewitnesses introduced in behalf of appellant, Thornhill was injured, without negligence on the part of appellant’s servants, while he was attempting to jump on one of its moving trains. “Objection was interposed to the following questions propounded to appellee on cross-examination: ‘Were you used to jumping on trains?’ ‘Had you not on several occasions before jumped on moving trains, or attempted to jump on moving trains?’ Although the current of authority seems to be to the contrary, it may be that under some circumstances a person’s habit or custom may be admissible in evidence as tending to show the doing on a specific occasion of an act which is a subject of habit or custom as to which we express no opinion. But this case presents no such circumstances. An affirmative answer to these questions would not have established any regular habit or custom, but would simply have shown that appellee on other occasions had jumped or attempted to jump on moving trains, and such evidence, under all the authorities, is not admissible.” *506 It will be observed from tbe opinion in that casé that the decision of this question was expressly pretermitted. We agree with the principles laid down in the quotation above from Wigmore on Evidence. We would not be understood, however, as holding that a material fact at issue in a case may be proven exclusively by evidence of custom or habit. That question is not involved here. In addition to the. evidence of appellant’s habit of “hopping” trains, there was an abundance of other evidence tending to show that appellant did not receive the injury sued for at the High School avenue crossing, nor at any other place, while in front of or in the rear of the logging train; but, if he was injured by the running of the train at all, it occurred between the engine and the caboose in an effort on his part to swing onto the train while moving. The evidence of appellant’s custom of “hopping” trains was supplementary to other evidence tending to show that he received his injury while so engaged. We hold that it was competent for that purpose; therefore there was no error in admitting it in evidence. The action of the court in overruling appellant’s motion to remand the case for further evidence is assigned and argued as error. The case was tried and taken under advisement by the chancellor for decision in vacation.' While the chancellor had the case for consideration and decision in vacation, appellant’s motion to remand for further evidence was filed. The ground of the motion to remand was newly-discovered evidence, shown by the affidavits filed with the motion to be material to the issues in the case. However, the affidavits accompanying the motion showed that the newly-discovered evidence was cumulative alone. The chancellor overruled the motion. The granting of such a motion was within his sound . discretion; and we do not think the action of the chancellor in overruling the motion to remand was an abuse of sound discretion. Appellant contends that the statutory presumption provided by section 1985, Code 1906 (section 1717, Hem *507 ingway’s 1927 Code), that the injury complained of was caused by the negligence of appellees, was not overcome by the evidence, and therefore appellant was entitled to a decree. That statute provides, in substance, that in all actions against railroad companies for damages to persons or property, proof of injury inflicted by the running of the locomotives or cars of such companies shall be prima-facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. The presumption furnished by this statute is only„a prima-facie presumption. It must yield to the facts as shown by the evidence, as this court has often held. We are of the opinion that there was ample evidence in this case, both direct and circumstantial, to overcome the statutory presumption. The evidence on behalf of appellees, although largely circumstantial, was strong and convincing, while that on behalf of appellant had many elements of weakness. There were several material conflicts between the testimony of appellant, as a witness in his own behalf, and that of his brother, who were the only eyewitnesses to the alleged injury. We think the other assignments of error by appellant are of so little importance that they do not call for a discussion by the court. They are grounded on the action of the court in admitting the testimony of the witness Nelson and others. It is unnecessary to decide whether or not the court erred in the admission of the testimony of these witnesses, for it is apparent that their testimony could not, and did not, have a material bearing with the court in deciding the issues of fact in the case. Affirmed.