Opinion
No. 28663.
May 5, 1930.
1. EVIDENCE.
Court takes judicial notice that large quantities of explosive and inflammable materials like dynamite, gasoline, and creosote are constantly transported on freight trains.
2. COMMON LAW.
Common law expands and develops to meet requirements of growth and development of country.
3. RAILROADS.
Trainmen, in charge of train transporting inflammable and explosive materials, should use reasonable care, measured by well-known dangers, to prevent wreck.
4. RAILROADS.
Whether train crew exercising proper care should have heard noise of bumping wheel causing wreck with resulting damage to plaintiff's buildings in time to avoid wreck, held for jury.
APPEAL from circuit court of Jones county, First district. HON.W.J. PACK, Judge.
Bozeman Cameron, of Meridian, for appellant.
The mere defective condition of a wheel is not sufficient, but the Railroad Company must have known of it actually, or constructively, before liability can be assumed.
Lampton v. Atkins, 92 So. 638; A. V. Ry. Co. v. White, 106 Miss. 141, 63 So. 345; Railroad v. Bennett, 111 Miss. 163, 71 So. 310; Hope v. Railroad Co., 98 Miss. 829, 54 So. 369; Ten Mile Lbr. Co. v. Garner, 117 Miss. 814, 78 So. 776; M. O.R.R. Co. v. Clay, 125 So. 819.
Where plaintiff fails to meet the burden of showing negligence, a peremptory instruction should be given for the defendant.
Mobile Ohio Railroad Company v. Clay, 125 So. 819.
The proof as to damages was highly improper and entirely speculative and the damages awarded by the jury were grossly excessive.
G.W. Hosey and Jeff Collins, both of Laurel, for appellee.
Where the wheel of a tank car had been so defective and dangerous for so many miles that by the use of ordinary skill and care on the part of the train crew they could have known and should have known that the said wheel was defective and dangerous, then the railroad company is guilty of negligence.
Jamison v. Illinois C.R. Co., 63 Miss. 33; Ala., etc., R.R. Co. v. Lowe, 73 Miss. 203, 19 So. 96; Illinois, etc., R. Co. v. Turner, 71 Miss. 403, 14 So. 450.
The employees of a railroad company in charge of a train must at all times be diligent in the operation of said train and keep a careful watch over the whole train so as to detect immediately anything wrong with the train, the track or any part of the train.
New Orleans, etc., R. Co. v. Bourgeois, 5 So. 629; Chicago, etc., R. Co. v. Jones, 59 Miss. 465; New Orleans, etc., R. Co. v. Fields, 46 Miss. 576; Barnes v. Railroad Co., 132 Miss. 313, 96 So. 513; New Orleans, etc., R. Co. v. Martin, 126 Miss. 765, 89 So. 621.
The question of damages was one of the things which was a question for the jury and it was their duty to fix the value of the property as shown by the testimony and their verdict should not be disturbed.
Argued orally by Ben F. Cameron, for appellant.
(After stating the case as above.)
It is a matter of common knowledge, of which the court will take judicial notice, that in modern railroad operations, large quantities of highly explosive and inflammable materials, such as dynamite, gasoline, and creosote, are constantly being transported on freight trains. The country is becoming more thickly populated; in cities and towns large numbers of business establishments and some residences are located adjacent to railroads; and in the country homes and barns and outhouses are found adjoining the rights of way of railroads. In view of these well-known conditions, can it be said that the destruction of nearby property by explosion or fire caused from the wreck of a freight train of this character is not one of the natural and probable results of such a wreck? We think not. Before the days of dynamite, gasoline, creosote and other highly explosive and inflammable materials, probably such a result could hardly have been anticipated. The law must expand and develop to meet the requirements of the growth and development of the country. Such expansion and development is one of the inherent qualities of the common law. Trainmen in charge of freight trains transporting materials of this character should use reasonable care to prevent wrecks. And what is reasonable care is measured by the well-known dangers incident to transportation of such materials. It is true that the evidence in this case showed, without conflict, that the trainmen in charge of the train heard and knew nothing which indicated that the train might be wrecked. Nevertheless, the evidence for the appellee tended to show that if the train crew had been exercising proper care and diligence in the operation of the train, they could and would have heard the noise of the bumping wheel under the tank car, which caused the wreck, and would have heard it in time to take the necessary steps to prevent the wreck. We think, therefore, this was a question for the jury.
Appellant assigns and argues, as ground for reversal of the judgment, that the verdict of the jury was grossly excessive. The verdict does appear large, but we cannot say that it is so large as to be shocking to the enlightened conscience, and therefore the result of passion or prejudice on the part of the jury.
Affirmed.