Dantzler Shipbuilding & Dry Docks Co. v. Hurley , 119 Miss. 473 ( 1919 )

Cook, P. J.,

delivered the opinion of the court. N

Mrs. J. W. Hurley and her children brought this suit against the appellee for the alleged negligent killing of the husband of Mrs. Hurley and the father of her children. The shipbuilding company was engaged in the business of shipbuilding, and its plant was located at Pascagoula. Numerous workmen were employed by this company,, and Mr. Hurley, the deceased , was one of the number. Mr. Hurley and a number of the other employees made their home in Moss Point, a nearby town. An arrangement was made whereby the company furnished an automible truck and driver to and from their homes.

The plaintiffs alleged, and for the purposes of this opinion we will assume, that the evidence tends to prove that they paid a small stipend to the company for this service; thus assuming that the company thereby became a carrier for hire. It was also alleged that the driver was reckless; but as the facts of this case do not show, or tend to show, that the injury and death of Mr. Hurley was caused by any reckless conduct of the driver, this avermeht of the declaration will not influence our conclusions.

Taking the record as a whole, there is very little conflict in the evidence about the deplorable accident which robbed the wife of a husband and the children of a father. On the date of the injury to Mr. Hurley, Mr. Hurley and a number of other employees were passengers upon the truck, having hoarded the truck at the shipyard to be transported to their several homes in Moss Point. ' When the truck reached the boarding house of Mr. Hurley, and while it was running at a speed of not less than three miles per hour, Mr. Hurley jumped off the truck, and, losing his balance, he fell under the wheels of the machine, receiving injuries which caused his death.

We can find no evidence in the record that the driver was not going to stop at all. At the most, it may he inferred that the driver did not stop in front of the gate, and that he did not intend to stop exactly in front of the gate. It is also shown that the body of Mr. Hurley was dragged about fifteen feet before the truck was stopped and backed off of him. It will never be known why Mr. Hurley jumped from the moving truck. It is, however, assumed by the attorneys for the plaintiff that he jumped because he saw or believed that the truck would not stop just opposite his gate.

We are unable to appreciate the argument that it would be a breach of the contract of carriage for the driver to have passed the gate for a few feet or yards, as it was shown that anywhere near this gate there were no impediments ■ or inconvenienced in the way of his getting into his home. As we read the record, it conclusively appears that the driver had shifted his gear and would probably have brought his car to a stop within a half dozen yards of the gate. Assuming, however, that the driver should have stopped his ear immediately in front of the gate, and that he did not. do so, we must nevertheless reach the conclusion that the 'efficient and proximate cause of the injury was the voluntary act of Mr. Hurley himself. There can be no reasonable doubt that, had Mr. Hurley remained on the truck for a few seconds more, lie would to-day be living, barring other causes of death.

Again, we are unable to appreciate the validity of the argument that the truck was negligently operated. If we assume that it was the custom to stop the car precisely opposite the gate, and that in this instance the driver neglected to toe the mark, but was going fifteen or twenty yards beyond the gate, this could not be classified as negligence. We think the following cases are all authority for the conclusions we have reached, viz.: Bardwell v. M. & O. R. R., 63 Miss. 574, 56 Am. Rep. 842; Collins v. Southern Ry., 89 Miss. 375, 42 So. 167; Natchez, C. & M. R. R. v. Lambert, 99 Miss. 310, 54 So. 836, 37 L. R. A. (N. S.) 264; N. O., J. & G. N. R. R. v. Statham, 42 Miss. 607, 97 Am. Dec. 478.

The charge of negligence was not sustained. If it could be said that the driver was negligent, the plaintiff is still without remedy, because the alleged negligence was not the efficient or proximate cause of the injury. Taking this view of the case, the judgment _of the trial court will be reversed, and the cause dismissed.

Beversed and dismissed.