Illinois Central Railroad v. Emmerson

Whitfield, C. J., delivered 'the opinion of the court. The case presented by this record differs from the same case, as presented before, in but two respects: Eirst, the amendment, which was offered and withdrawn on the former trial, predicating the right to recover on the fact that the blocking of the switch line on which the train of cars Emerson was on, compelled him to check suddenly his train, as a result of which, as claimed, the injury was inflicted, was made in the declaration on this trial; and, second, that the expert witness, Jenkins, was introduced and testified for the appellee. So far as the amendment is concerned, it is sufficient to say that the testimony in the case makes overwhelmingly plain that the proximate cause of the injury was the undue slack in the chain, as explained in our former opinion. If the derailed car had been coupled as it ought to have been coupled, there is no reason to believe that the injury would have occurred at all, on the testimony disclosed by this record. This leaves the ease precisely as it was before, with the exception of the testimony of this expert. The cross-examination of this witness very much shakes its value if it had any at all; and at last' it is nothing except the purely speculative opinion of this expert as to whether this coupling was properly effected. He squarely testifies, it is true, that it was made just as it ought to have been made, in his opinion as an expert, and that the greater the slack the less the likelihood of danger. We confess ourselves unable to appreciate this view of the [238] witness. It is idle for any witness, however expert, to testify that a certain way of coupling with the slack shown to have been left in this case could not have produced the injury, when the evidence of the eyewitnesses conclusively demonstrates that that very thing did produce the injury. “Res ipsa loquitur ” is a perfect answer to the opinion of the expert witness. As pointed out in our former opinion (88 Miss., 598; 40 South., 818), the unfortunate man was repeatedly warned óf the danger of his position and of the peril resulting from the improper coupling. We stated all this in our former opinion, and merely refer to it again, to say that we are thoroughly convinced, now as then, that the injury was solely attributable to the gross contributory negligence of the deceased, Emmerson. Deplorable as such deaths are, and sympathizing profoundly, as we do, with those who must suffer in consequence, nevertheless it is not for this court, because of its sympathy, to impose liability where the law and the facts of the case clearly show none exists. The court below should have given peremptory instructions to find for the defendant. Reversed and remanded.