Mobile O.R. Co. v. Brewer

107 So. 199, 142 Miss. 60, 1926 Miss. LEXIS 61

• Court: Mississippi Supreme Court
• Decided: February 22, 1926
• Docket: No. 25438.
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

The appellee sued the appellant for a personal injury suffered by him by reason of the pulling apart of a “lap link,” used in connecting a chain attached to the appliance used by the railroad company in filling the sand box of its locomotive.

The appellee, plaintiff below, was a helper of a hostler at Okolona, Miss., and on the occasion of the injury was filling the sand boxes of the locomotive. The method by which this was done was that the sand was in a tank or box elevated above the locomotive, and there was a chain attached to the valve or piece of machinery. When this chain was pulled, the valve would be so turned that the sand would run into the sand box of the locomotive. When the chain was pulled by the plaintiff in this instance, it came apart, causing him to lose his balance on the locomotive and to fall, whereby he was injured.

The plaintiff testified that it would take from ten to fifty pounds ’ pull to release the valve; that he pulled the chain on the occasion in question in the usual manner; that the chain broke, and he fell and was injured; that he suffered a cut above one eye, a broken finger, and other injuries to his hand, and also that his hip was injured permanently, causing serious injury to the sciatic nerve, causing great suffering.

The plaintiff did not see the condition of the chain at the time the injury occurred, which was between twelve and one o’clock at night. The place where plaintiff worked was not lighted at the time. The proof showed that the chain which turned the valve had been pulled apart and broken on a former occasion, that at first it was mended with a piece of wire, but subsequently and before the injury was mended with a “lap link,” and that this lap link pulled apart.

The exact condition of the lap link at the time of the injury or immediately after the injury was not shown. The person whose business it was to inspect the appliance used in loading the sand testified-that he inspected it on the morning prior to the injury; that he looked at it, and it appeared to he all right. It further appears from the evidence that this lap link was situated near the valve in the sand tank, which was in some kind of opening, the exact character of which is not. very clear from the record, but which it appears would require a somewhat particular examination.

It is very earnestly insisted by the appellant that the proof is not sufficient’to sustain the verdict of the jury, and that a directed verdict should have been given by the court as requested by the defendant.

While the proof as to the condition of the sand appliance, lap link, and chain is not as clearly developed as it should be, and while there is no evidence as to how many times these appliances had been used during the day, nor the character of pull required on the chain for the sanding of the boxes of other locomotives during the day, or during the time between the inspection and the accident, still we think it was for the jury to say, from all the circumstances, whether or not the chain was in a safe condition at the time of the inspection and at the time of the injury to appellee, and whether the master was chargeable with negligence under the circumstances. The jury have knowledge of the use -of a lap link and the safety of such a link and the amount of power required to separate it when it is properly connected. The proof is not as satisfactory as we should like to see it on this 'proposition, but, as the case must be reversed for another error, the facts may be more fully developed on another trial.

We think it was error for the court to give the following instruction for the plaintiff:

“The court charges the jury for the plaintiff that the taking off'of the old chain, which was being used at the time of the injury to the plaintiff, and putting on a new one, is not conclusive proof of the negligence of the railroad company, but is a circumstance to be considered by the jury, along with all the other evidence in the ease, in determining as to whether or not the defendant at the time of the accident was guilty of negligence. ’ ’

The proof in the case shows that this chain, which produced the injury by breaking, was replaced by another some five months after the injury. This is entirely too remote to give rise to a presumption of negligence, or to authorize the jury to draw conclusions as embodied in the instruction quoted above from such fact' alone. For this error the judgment of the court will be reversed, and the case remanded for a new trial.

Reversed and remanded.