Meridian Light & Ry. Co. v. Dennis

100 So. 581, 136 Miss. 100, 1924 Miss. LEXIS 107

• Court: Mississippi Supreme Court
• Decided: June 16, 1924
• Docket: No. 23607
• Status: Published

Opinions

Cook, J.,

delivered-the opinion of the court.

This action is by Sam B. Dennis against the Meridian Light & Bailway Company, appellant, for damages fox-personal injuries alleged to have been sustained ifv him while in the employ of the appellant company, and from a judgment in favor of the plaintiff for seven thousand five hundred dollars the railway company prosecuted this appeal.

The facts in this record, ixx so far as they are material to a decision of this case, are substantially as follows :

At the time of the injury the appellee was employed by the appellant as “barn man,” which position he had held for three months, and previous to that time he had been employed by the appellant as lineman and trouble man. The appellee’s duties required him to do the light repairs oxx cars, and other work around the barn, and also to act as motorman ixx carrying a car to the end of the lixxe each morning and afternoon for the purpose of transporting other employees- to and from their work, and also, when the occasion required, to run a. car over the line of the railroad for the purpose of removing broken trolley wires, rerailing cars, and correcting other troubles. On the date of the injury the appellee was directed to proceed from the car barn to a place on the street car line in the city, where a street car had been derailed, for the purpose of assisting in derailing the car. He took one of the street ears at the barn, himself acting as motorman, and proceeded toward the place of derailment. "When near the corner of Eighth'street and Twenty-Third avenue the electric current on the trolley wire went off, and appellee stopped the car which he was driving by applying the brakes. There were two other street cars stopped on the track in front of appellee’s car, the distance between the front car and the middle car being about twenty feet, .and the distance between the middle car and appellee ’p car being estimated at from twenty to thirty feet. The appellee testified that when he stopped his car he partially released the brakes, and left his car and went forward to find out the nature of the trouble ahead, leaving no one on the car. He further testified that he left the door to' the vestibule of this car open; that there is located in this vestibule a controller through which the electric motive power is transmitted; that this controller has on it a metallic handle by the use of which the motorman operates the car; that this controller handle may be pushed to the right around a .circle, and thereby the electric current will be turned on, while if it is turned to the left the current is entirely 'shut off; that there is also on this controller a reverse lever which must be placed in a forward position before the car can be moved forward, and when this reverse lever is in neutral position the car cannot be moved forward; that this reverse lever and the controller handle may be removed entirely when the reverse lever is in neutral position; that when he left his car he did not remove either the controller handle or the reverse lever; that the reverse lever was left in a forward position, but he did .not think he left the controller in a forward position, or in gear, to use a well-understood expression. He further testified that the electric current may he entirely cut off from the'car by moving the handle of a switch which is located over the motorman’s head in the vestibule of the car, or by removing the trolley from contact with the trolley wire, and that he did neither of these things.

The appellee further testified that he went forward to a point near where the linemen were repairing a broken trolley wire.; that when this repair was completed the superintendent of the company directed him to go to a telephone and order the employees at the power house to turn the power on; that he went to a telephone and gave the order, but they refused to obey the order, for the reason that, under the rules of the company, the power would be turned on only when ordered by the employee who had ordered it turned off; that he reported this refusal to the superintendent; that the superintendent then went toward the telephone, and he, the appellee, went towards his car, which was standing sixty or seventy feet away; that he stopped about thirty feet away from his ear, and talked for a minute or two with Mr. Rollins, the motorman on the car which was standing immediately in front of his car; that when he was fifteen or twenty feet from his ear he noticed it moving forward; that he then ran to the door of his car, and, finding it closed, tried to get it open; that, failing in this, he ran around in front of the car and climbed upon the drawheacl, and reached through the front window and shut off the controller by moving’ the handle into the neutral position, and partially applied the brakes, when his car struck the car ahead, catching his leg between the cars and injuring him. The appellee further testified that his car was a light car about twenty-five feet long, while Rollins’ car immediately ahead was a heavy, open, summer car, about fifty feet long; that when bis car started forward Rollins was standing in the rear of this long car, and that when he (the appellee) ran, to the door of his car Rollins ran toward the front end of his car, and that the speed of appellee’s ear constantly increased until he shut off the power and partially applied the brakes.

For "the defendant, Rollins, the motorman on the middle car, testified that when the power came on, indicated by the lights on his car coming on, the appellee was standing on the sidewalk some feet away from his car; that he (Rollins) was sitting in his car nearer to the front than the rear; that when the power came on he heard appellee’s car start forward; that he jumped up and started to the controller of his car for the purpose of endeavoring to move his car forward to prevent appellee’s car from running into his if possible; that when appellee’s car was five or six feet away from his car he saw the appellee jump up to the front window of his car; that he tried to reach his controller and start his car foiward, but before he could do so appellee’s car struck his, the collision occurring just as he reached the platform of the car and before he could do the things necessary to start the car, which, he testified, was a heavy one, and had just entered a curve.

The appellee’s declaration, which was in four counts, set forth in great detail the facts leading up to the injury, and alleged that it was the duty of the appellee, under the terms of his employment, to look after the car Avhich had been intrusted to him, and that his action in jumping on the front of the moving car in an effort to stop it was prompted by a desire to prevent injury to the property of defendant and to the persons on the car ahead, and that because of the peril to the property and passengers appellee failed to appreciate the danger incident to his act, and the acts of negligence charged, and upon which appellee seeks an affirmance of the judgment, may be summarized as follows:

First. That the defendant had promulgated no rule or method of advising appellee and its other employees just when the electric current would be turned into the wire.

Second. That the defendant turned the current of electricity into the trolley wire after it was repaired without giving any notice thereof to the plaintiff, although the defendant and its superintendent knew that if the current was turned into the wire without notice to appellee and other employees of defendant there was great danger that ears standing upon the tracks would start forward and collide with each other, and endanger both the property of defendant and the lives óf its employees and passengers.

Third. That Rollins, the motorman on the car next ahead of the car in charge of the appellee, saw the perilous position of the appellee while leaning in the window of said car and attempting to put the brakes on, and that Rollins could have easily moved his car forward and avoided the injury to appellee, but that he negligently failed to do so.

There was testimony to the effect that the method of notifying the motorman when the current came on after it had been turned off was for the motorman to turn the light switch on the car so that the lights would shine when the current came on; but, conceding for the sake of argument that this method was insufficient, and that the failure of the defendant to have a better system of signals would render it liable to an employee who was injured on account of this failure and on account of not ' having sufficient notice that the current was to be turned on, this cannot aid the appellee, for the reason that he had actual notice of the fact that the current was to be turned on at any moment. The appellee was an experienced lineman, having had seven years’ experience as lineman and trouble man for the defendant, and one of his duties in that connection had been to repair and handle broken trolley wires and interruped electric currents, the thing that was being done at the place of the accident, and for the completion of which the appellee and the cars were waiting. The appellee must have known from his long experience in that line of work that as soon as the repairs were completed on the broken trolley wire the current would be turned on so that the delayed cars could move. Aside from that, however, the appellee had actual notice. Acting under the direction of the superintendent the appellee had just a few moments before attempted to have the power turned on by telephoning to the power plant, and had failed for the reason that the employees at the power plant refused to recognize his authority so to do. He had reported this failure to his superior, and had seen the superintendent of defendant company go to a telephone to order the power on. With this knowledge he did not go promptly to his car, but stopped some distance away to talk to another employee. No one except himself was in a position to know that the appellee had -left his car so that it would move forward when the current was turned on, and no system of signals could have been more effective in warning the appellee to take any precautionary steps that might be necessary than was the actual notice that he already had, and under these facts no recovery can bé had on account of any failure to provide a system of rules or signals.

The appellee next contends that the judgment should be sustained under the doctrine of the last dear chance,, in that the motorman Bollins negligently failed to move his car forward after he discovered appellee’s position of peril, and appreciated that he could not extricate himself. Conceding for the purpose of this decision that this doctrine applies to the facts in evidence here, there is no testimony in the record tending to show that this motorman was guilty of negligence in this regard, or from which the inference of negligence may be drawn, and the verdict cannot be sustained on .this ground. If Bollins’ testimony is accepted, and it is uncontradieted by any testimony or any fact or circumstance in evidence, he did not fail in any possible duty which he owed to appellee after he discovered his position of peril, and was guilty of no negligence in failing to move his car forward after he discovered that appellee’s car was moving toward his car. Rollins testified that when the appellee first jumped on the front of the car and into a place of danger there was only five or six feet between the on-coming car and the stationary car, and that he made every possible effort to reach his controller and start his heavy car before the' impact, but failed in his effort so to do. The appellee’s testimony, -when analyzed, not only is not in conflict with that of Rollins, but rather supports it. According to his testimony his car was not over thirty feet behind Rollins ’ car at the time it started forward. At that time the appellee was about thirty feet from the car. He ran this distance, first going to the door and trying to gain admittance there. Having-failed to open the door he then ran around and jumped onto the drawhead. To accomplish these things an appreciable length of time had necessarily elapsed, and the appellee testified that all the while his car was going- forward at a continuously increasing* rate, but when he was pressed to state how near his car was to the Rollins car at the time he jumped between them, he repeatedly answered: “I don’t have any idea.” The testimony of Rollins as to his efforts to avoid the injury is uncontradicted, and is entirely reasonable and in accord with the other facts and circumstances in evidence, and we do not think the verdict can be sustained on the ground of negligence on his part.

Finally, the appellee contends that the statute making-proof of an injury by the running- of a street car primafacie evidence of negligence in reference to such injury required the submission of the case to the jury. Section 1645, Hemingway’s Code. ' j.

All the facts and circumstances under which the injury was inflicted are fully shown in the evidence, and this presumption of negligence created by the statute must yield to the facts, and we think the facts, which are undisputed, clearly exculpate the defendant company of negligence in reference to this accident, and that, under the facts, the peremptory instruction requested by the defendant should have been granted.

The judgment of the court below will therefore be reversed, and judgment entered here for the appellant.

Reversed and judgment for appellant.