Opinion
No. 27615.
May 13, 1929.
1. EVIDENCE. It is common knowledge no spark arrester permitting escape of smoke from railroad engine would keep back cinder size of sharp end of lead pencil.
It is common knowledge that no spark arrester that would permit the unobstructed escape of smoke from railroad engines would keep back a cinder of the size of the sharp end of a lead pencil.
2. RAILROADS. Railroad held not negligent where very small cinder from engine entered plaintiff's eye.
Injury sustained by plaintiff when cinder the size of sharp end of a lead pencil entered his eye could not be charged to any negligence on part of railroad company, since it is common knowledge that no spark arrester that would permit unobstructed escape of smoke from engine would keep back cinder of size that entered plaintiff's eye.
3. MASTER AND SERVANT. Statute requiring street car companies to equip cars with vestibules to protect employees against cold did not apply where motorman sustained injury when cinder entered eye ( Hemingway's Code 1927, section 9184).
Hemingway's Code 1927, section 9184, requiring street car companies to equip cars with complete vestibules and provide some means of heating them so as to thoroughly protect employees from cold and inclement weather, held not to apply so as to make street car company liable, where cinder from railroad engine entered motorman's eye, causing loss of sight of such eye.
APPEAL from circuit court of Warren county, HON.E.L. BRIEN, Judge.
Henry, Canizaro Henry, Thames Thames and Brunini Hirsh, all of Vicksburg, for appellant.
We contend that Hemingway's Code, section 9184, requiring street car companies to equip cars with complete vestibules and provide some means of heating them, so as to thoroughly protect employees from cold and inclement weather, applies in this case so as to make street car company liable where cinder from railroad engine entered motorman's eye, causing loss of eye, and that the negligence of the defendants was fully established by the plaintiff's testimony to the satisfaction of the jury, when he showed that the engine emitted sparks in large, unusual and unnecessary quantities. Texarkana Ft. S. Ry. Co. v. O'Kelleher, 51 S.W. 54; Louisville N.R. Co. v. Roberts, 187 Ky. 192, 218 S.W. 713; Wiedmer v. New York Elevated Railway Co., 114 N.Y. 462, 21 N.E. 1041; St. Louis R.R. Co. v. Parks, 97 Tex. 131[ 97 Tex. 131], 76 S.W. 740; Batte v. St. Louis R.R. Co. (1917), 131 Ark. 568, 199 S.W. 907; Philadelphia Railway Co. v. Young (1898), 62 U.S. 33, C.C.A. 251, 90 Fed. 709; Atherton v. London N.W.R. Co. (1905), 21 Times L.R. (Eng.) 671, 93 L.T. (N.S.) 464.
Hirsh, Dent Landau, of Vicksburg, for appellees; H.D. Minor and C.N. Burch, of Memphis, Tenn., of counsel.
Defendants entitled to a directed verdict. The uncontradicted evidence discloses that if injury was inflicted, it was by a spark or cinder about the size of the sharp end of the lead in an ordinary lead pencil. No negligence shown by the emission of such spark or cinder. Impossible to operate locomotives without the emission of such sparks or cinders and therefore there is no liability against either of the defendants.
Miss. Cotton Oil Co. v. Smith et al., 48 So. 735; Louisville Nashville R.R. Co. v. Jones, 134 Miss. 62; Owens v. Southern Railway Co., 145 S.E. 560; Carter v. Lumber Co. (N.C.), 39 S.E. 828; Bradley v. Coal Co., 169 N.C. 255, 85 S.E. 388; Davis v. R.R., 170 N.C. 582, 87 S.E. 745, Ann. Cas. 1918A, 861; Patten v. United Life Acc. Ins. Ass'n, 133 N.Y. 450, 31 N.E. 342; Sovereign Camp Woodmen of the World v. Grandon, 64 Neb. 39, 98 N.W. 448.
An instruction assuming negligence to exist on a sharply controverted question of fact is erroneous.
Griffin v. Griffin, 93 Miss. 651, 49 So. 945; Reed v. Railroad Co., 94 Miss. 639, 47 So. 670; Godfrey v. Light Co., 101 Miss. 565, 58 So. 534; Railroad Co. v. Harris, 108 Miss. 574, 67 So. 54.
The only statute in this state with reference to vestibules on street cars is section 9184 of Hemingway's 1927 Code.
The statute was erroneously invoked and this constitutes reversible error.
A. V. Ry. Co. v. Cox, 106 Miss. 33, 63 So. 334.
Before the plaintiff was entitled to recover any sum it was necessary for him to allege and prove some negligence.
Thompson v. I.C.R.R. Co., 105 Miss. 636, 63 So. 185; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9; Woodland Gin Co. v. Moore, 103 Miss. 447, 60 So. 574; White v. Rand, 123 S.E. 85; Richardson v. Southern Surety Co., 139 S.E. 839.
The court erred in refusing this instruction:
"The court instructs the jury for the defendant, the Yazoo Mississippi Valley Railroad Company, that if you believe from the evidence that no spark arrester will totally prevent the emission of sparks and cinders, or that such spark arrester as will totally prevent the emission of sparks is impracticable, and if you further believe from the evidence that the alleged injury, if any, to plaintiff's eye, was from one of said defendant's locomotives pulling a train, between the hours of 9 A.M. and 11:30 A.M. on the morning of February 2, 1924, and if you further believe from the evidence that said locomotive emitting such sparks or cinders, if any, was at that time such a locomotive as was in common use and was of approved pattern, and in reasonably good repair, and that the equipment thereof for the prevention of the emission of sparks or cinders, was at that time of the character in common use and of approved pattern, and in reasonably safe repair, and that said locomotive was carefully handled by a competent engineer, then you must return a verdict for the said defendant, the Yazoo Mississippi Valley Railroad Company, notwithstanding that you may further believe from the evidence that the plaintiff may have received injury to his eye from a spark or cinder which caused the loss of the vision thereof."
Yazoo Mississippi Valley Railroad Company v. Washington, 113 Miss. 105, 73 So. 299; Railroad v. Jones, 134 Miss. 62.
Argued orally by John Brunini and James D. Thames, for appellant, and by R.L. Dent, for appellees.
The appellant lost the sight of one eye, and, claiming that it was caused by an injury inflicted on him by the negligence of the appellees, sued them for damages therefor. He recovered a judgment for one dollar, and has appealed therefrom. The appellees have also filed a cross-appeal.
The evidence here pertinent is in substance as follows: The Yazoo Mississippi Valley Railroad Company owns and operates a railroad which runs through the city of Vicksburg; the Mississippi Power Light Company owns and operates a street railway in the city of Vicksburg, and which extends about two miles beyond the city limits parallel with and close to the Yazoo Mississippi Valley Railroad Company's railroad. The appellant was a motorman employed by the Mississippi Power Light Company, and on the 2d day of February, 1924, was operating one of that company's cars. At a point outside of the city limits his car passed a train of the railroad company, the engine of which was emitting a large quantity of sparks and cinders varying in size from the large end to the small end of a sharpened lead pencil. The platform on which it was necessary for the appellant to stand in order to operate the car was not inclosed, and one of the cinders "about as big as the little end, or the sharp end, of a lead pencil," entered the appellant's eye, because of which he claims to have afterwards lost the sight thereof. According to the railroad company's evidence, its engine was equipped with a proper spark arrester, but we will assume that, if here material, that fact was on the whole evidence a question for the jury.
The appellees' complaint on the cross-appeal is that the court below erred in not granting their request for a directed verdict.
Whether the railroad company's spark arrester was of the approved pattern is of no consequence, for, according to the evidence and common knowledge, no spark arrester that would permit the unobstructed escape of smoke from the company's engines would keep back a cinder of the size that entered the appellant's eye, from which it necessarily follows that the appellant's injury cannot be charged to any negligence on the part of the railroad company.
Section 1, chapter 148, Laws of 1912 (section 9184, Hemingway's 1927 Code), provides that:
"Street car companies operating street cars by electricity, or by any other motive power requiring operator to be on the front of the car, and outside the main body thereof, in municipalities having a population of not less than five thousand by the Federal census of 1910, or by any subsequent Federal census, shall equip all cars with complete vestibules and provide some means of heating same, so as to thoroughly protect employees from cold and inclement weather.
"Provided, That this act shall not apply to cars operated from the 15th of March to the 1st of November in each year."
The appellant's contention as to the Mississippi Power Light Company is that, had the platform on which he was standing while operating its car been vestibuled, that is, inclosed, the cinder could not have entered therein and injured him. The only duty imposed on the street railway company to vestibule its cars is that imposed by the statute, and, according to its counsel, the statute has no application here, for two reasons: First, the cinder did not enter the appellant's eye while he was operating the car within a municipality; and, second, that the purpose sought to be accomplished by the statute is solely to protect street railway employees from the hazards incident to "cold and inclement weather." The first of these contentions may be, and will be, pretermitted, for the second is manifestly correct. "The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if: (a) the intent of the enactment is exclusively or in part to protect an interest of the other as an individual; and (b) the interest invaded is one which the enactment is intended to protect; and (c) where the enactment is intended to protect an interest from a particular hazard, the invasion of the interests results from that hazard; and (d) the violation is in law the cause of the invasion, and the other has not so conducted himself as to disable himself from maintaining an action." Am. Law Inst. Restatement Torts (Tent.), section 176; 45 C.J. 726; St. Louis S.F.R. Co. v. Conarty, 238 U.S. 243, 35 S.Ct. 785, 59 L.Ed. 1290.
The appellees' request for a directed verdict should have been granted. The judgment of the court below will be reversed, and a judgment for the appellees will be rendered here.
Reversed, and judgment here.