Gulfport & Mississippi Coast Traction Co. v. Hicks

Stevens, J., Delivered the opinion of the court. On all points raised by appellant this case must be affirmed. The only assignment which merits any discussion is the contention that the prima-facie' statute (section 1985, Code of 1906, as amended by chapter 215, Laws of 1912) is not applicable to the state of facts presented by this record. This statute as amended reads: “1985 (1808). Injury to persons or property by railroads prima-facie evidence of want of reasonable skill and care, etc. — In all actions against railroad corpor — 170 — ations and all other corporations, companies, partnerships and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, for damages done to persons or property, proof of injury inflicted by the running of the engines, locomotives or cars of any such railroad corporations or such other corporation, company, partnership or individual shall be prima-facie evidence of the want of reasonable skill and care of such railroad corporations, or such other corporation, company, partnership or individual in reference to such injury. This section shall also apply to passengers and employees of railroad corporations and of such other corporations, companies, partnerships and individuals.” In this case the plaintiff was a passenger upon one of the regular interurban electric cars of appellant company. His injury was the result of a shock by electricity from the controller of the car, against which the plaintiff was leaning. The plaintiff was standing on the back platform of the car smoking; there was a disabled car just ¿head, and.the car on which plaintiff was a passenger had stopped and was waiting for a clear track. It is contended that the phrase in the statute “running of the cars” contemplates the actual motion of the cars, and that, inasmuch as the car on which plaintiff was shocked was not moving, the prima-facie statute does not apply. This statute, we think, has reference to something more than the actual locomotion, and should be interpreted as meaning the operation off the car. To give to the word “running” its literal meaning would narrow the application of the statute, circumscribe its effect, and greatly impair its usefulness as a salutary rule of evidence. The statute takes account of the hazard to passengers and employees from “dangerous agencies of steam, electricity, gas-, gasoline, or lever power,” and makes the proof of injury “inflicted by the running of the engines, locomotives, or cars” prima-facie evidence — 171 — of the want of reasonable shill and care of the defendant company, partnership, or individual “in reference to such injury.” The object of the statute justifies us in refusing to give to the word “running” a literal construction. If we did, we could easily reach conclusions that would be more absurd than reasonable. Under such interpretation, to be logical, the locomotive or cars would always have to be in motion before the statute would apply, and we can conceive .of many. instances clearly within the scope and purpose of the act where the injury would be inflicted by the negligent operation of the cars. Under such literal construction as contended for, the sudden stopping of a car resulting in injury would not really present a case of “running.” If there should be a head-on collision and derailment, a passenger . might not be injured at all while the cars were in motion, but could easily be broken up by a derailment, or injured by water, escaping steam, or fire resulting from such collision. In the .present case the car was actually engaged in transporting passengers and had stopped momentarily, waiting for a clear track. The trolly wire was a high, tension wire conveying a heavy voltage of electricity. Under the theory and proof for the plaintiff the controller against which Mr. Hicks was leaning should not and under normal conditions would not have been charged with electricity. The fact that the controller was heavily charged, and that voltage was so great as to knock appellee down, is sufficient to raise a presumption of negligence against the company. It was not error, therefore, to grant the instruction complained of. There is very little difference between the Georgia statute and our statute, and the views we express and the interpretation we place upon our statute is in line with the construction placed by the Georgia court upon their statute, as shown by the opinions in Georgia Ry. Co. v. Reeves, 123 Ga. 697, 51 S. E. 610; Seaboard Air Line v. Bishop, 132 Ga. 71, 63 S. E. 1103. In the Bishop Case the court employed the following illustration: — 172 — “A train pulls up to a station, and stops. A passenger in alighting is injured because the step of the car is broken or wanting. Technically speaking, the train is not ‘running,’ in the sense of being in actual motion, at the instant when the passenger is alighting. But he is injured by the running of the train in the sense that it is being operated, and that, as a part of such operation, the company must allow passengers proper opportunities for alighting.” In the present case, according to the plaintiff’s testimony, the agency which caused the injury was under the control of the defendant, and it is shown that under normal conditions, with proper equipment, the proper insulation of wires, the use of lightning arresters, and by having the .controller properly grounded, the accident would not happen. If the accident under ordinary circumstances would not happen if-reasonable care is employed, then the negligence of the defendant should be presumed, and this presumption should yield only to positive proof. The history of our present statute must be kept in mind. As it appeared in the Code of 1880, section 1059, it did not embrace or protect passengers. In its present form it is expressly made applicable to passengers. This fact materially differentiates the present case from Railroad Co. v. Trotter, 60 Miss. 442. In so far as the doctrine of res ipsa loquitur may be applicable to the present case, the Trotter Case is authority. It is there stated by Judge Coopers: “As to injuries resulting from causes which ordinarily exist only by reason of the negligence of the carrier, it has been held that proof of the injury and the character of the carrier is sufficient to establish a prima-facie right of recovery, and to entitle the plaintiff to judgment unless rebutting testimony is introduced by the carrier, Hutchinson on Carriers, 801, and authorities cited.” See, also, Railroad Co. v. Conroy, 63 Miss. 562, 56 Am. Rep. 835. — 173 — Our court, in Railroad Co. v. Humphrey, 83 Miss. 722, 36 So. 154, reviewed and discussed the holding in the Trotter and Conroy Cases, and, among other things, stated: “In the Conroy Case the plaintiff was injured while a passenger, by the running of the train, but that injury was caused by a collision of the train with an animal on the track, and therefore, from the nature of the accident, negligence of the carrier was implied, but this was not by reason of the statute, but because the doctrine of res ipsa loquitur applied.” It will'be noted that the instruction complained of in the case at bar simply told the jury that if they believed from the evidence that the plaintiff was injured the law presumes that this injury resulted from the negligent failure of the defendant company to furnish a reasonably safe and secure car in which the plaintiff was entitled to fide, and if the plaintiff was injured by the controller, as testified to by him, then he had made out a prima-facie case. The court did not, in this instruction, expressly say that our statute applies, but as stated by Judge Truly, speaking for the court in the Humphrey Case, supra: “In such cases proof of injury to the passenger joined to the proof of the accident makes out against the carrier a prima-facie case of failure to observe that high degree of care required of it under the law, and, if not rebutted, entitles the plaintiff to recover.” It may be conceded, then, that the statutory presumption conspires with the doctrine of res ipsa loquitur, and that both are applicable under the facts of this case. Our court, in Railroad Co. v. Groome, 97 Miss. 201, 52 So. 703, discusses the maxim res ipsa loquitur, and states that: “It is applicable ‘where, under the circumstances shown, the accident presumably would not have happened if due care had been exercised.”’ — 174 — In the Groome Case appellee Groome was an employee of the railway company and in the discharge of his duty stepped from a train of cars upon a defective plank walk between a side and main track of the railway company. That case, in so far as it discusses the application of the maxim as between master and servant, of course, is not in point here. See, also, Berry et al v. Cumberland Tel. & Tel. Co. et al., 95 Miss. 729, 50 So. 69. Our present section 1985, Code of 1916, was applied in the case of Illinois Central R. R. Co. v. Thomas, 109 Miss. 536, 68 So. 773; a case where fire was set out by one of the locomotives of the railway company. It was there stated: “On the evidence we think the question of whether or not the fire was set out by this train was for the jury, and if it was set out by this train, then under section 1985 of the Code, negligence oh appellant’s part in this connection must be presumed, there being no evidence disclosing the facts and circumstances under which the fire was in fact set out.” Suppose the locomotive which set out the fire in the Thomas Case had been standing upon the track at the time the sparks were emitted, could there be any different application of the statute? Proof of the injury is, of course, made the basis of any application of the statute. According to the plaintiff’s testimony in the case at bar, he was injured by an unusual current of electricity conveyed through an instrument that under normal conditions would be innocent and harmless; a necessary appliance, however, in the transportation department of appellant. It is interesting to observe the construction placed by the supreme court of the United States upon our prima-facie statute. Mobile, J. & K. C. R. R. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 55 L. Ed. 35, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463. The court, by Mr. Justice Lurton, uses the word “operation” as synonymous with the statutory word “running.” The opinion — 175 — says, “injuries arising from the actual operation of railway trains or engines; and again, ‘ ‘ evidence showing an injury due to the operation of trains or engines is only prima-facie evidence of the want of reasonable skill and care,” etc. The injury here sued for, according to the plaintiff’s theory and proof, was due to the operation of the cars, and this being so, our statute applies. The supreme court of Georgia, in Augusta & S. R. Co. v. Randall, 79 Ga. 305, 4 S. E. 674, refers to the statutory presumption as being really a common-law presumption which did not for the first time originate in the statute. This is persuasive that in the present case the statutory presumption and the maxim res ipsa loquitur conspired to make for the plaintiff a prima-facie case, and consequently there was -no error in granting the instruction complained of. Our attention has been directed to no case which puts at rest any question as to the application of the statute to a state of facts here presented, and for that reason we have thought it well to express our views on this point. The other objections argued are not well taken. Affirmed.