Gulf & S. I. R. v. Ellis , 126 Miss. 660 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

The appexlee filed suit against the appellant for personal injury and recovered a judgment for twenty-five thousand dollars from which this appeal is prosecuted.

The plaintiff was a clerk in a store belonging to one Williams at Magee, Miss. Williams had ordered a car of fertilizer from Jackson, Miss., which was shipped over the line of the appellant. When the car reached Magee, the station agent phoned Williams as to where he desired the car placed or “spotted,” to use the railroad term for placing a car. Williams directed the agent to have the car placed at the first door of his warehouse, which was north of the depot on a side track, or house track, of the appellant. The track joined the main line north of the depot and north of the warehouse of Williams, and- the car was switched in from this end of the main track and was placed in front of the north door of Williams’ warehouse. The brakes were set, and the car was chocked so as to be safe for unloading at the place where it was situated. After so placing the car, the train crew moved on, and after they had departed from Magee, Williams sent the appellant and another one of his employees to unload the car. These employees desired to have the car in front of the south door of the warehouse, and one of them went upon the top of the car to release the brakes, and the appellee took a pinch bar, which he borrowed from the railroad station agent, with which he removed a portion of the wood block used to hold the car, ‘and took said bar and after the brakes were released pinched the wheel over the chock with said bar. The track declined to the south, and it was claimed that the brakes would not hold and stop the car in front of the south door. Ellis, being on the ground and seeing that the car was going past the door, placed another chock, or wood block, on the track to halt the car. The first wheel ran over this block, and the car struck Ellis in such way that he fell with his leg and foot in front of the car, and the first wheel of the car ran over and crushed his leg so it had to be amputated. The second car wheel stopped at the chock so placed.

The proof for the plaintiff showed that the track where the car was left sloped or descended at some angle to the south, the way the car was moved; that is to say, the track was lower towards the south than it was towards the north, and when the brakes were released and the chock moved the car naturally proceeded south by force of gravity, and when it reached the chock had .gained such momentum that the first wheel passed over the chock, said chock being a 2x4 scantling.

It was also proved by the plaintiff that merchants were in the habit of pinching or moving cars when left on the side track to suit themselves; that is to say, if the car was not left exactly where it was wanted, it was a custom to release the brakes and take a pinch bar and propel the wheel by lever power with said bar to the place it was desired. The employees who handled the brakes on this occasion testified that the brake heel was worn so that the brakes did not properly operate to check the car. He was not an experienced brakeman, but had on previous occasions handled cars in this way and said that he had stopped cars on this track which contained as much as eighty thousand pounds of fertilizer or freight. The car in the present case contained sixty thousand pounds of fertilizer.

Neither the employees of Williams nor Williams himself requested the railroad company to move the car, nor was there any complaint that the car was placed at the wrong-place. Testimony for the railroad company showed that the car had been properly inspected, and that the brakes worked all right, and that in the switching movement the car was stopped with the brakes, and that it was properly placed according to the understanding of the railroad crew as to what the first door of the warehouse meant. It was also testified by the station agent and other witnesses for the appellant that the car would have been properly placed if complaint had been made or if the railroad had been requestied to so place it. That the station agent had jurisdiction over the crew for this purpose, and that two crews passed daily or at least on the day in question, through Magee.

There was a request for a peremptory instruction for the defendant at the conclusion of the testimony, which was refused. For the plaintiff the court instructed the jury:

“The court instructs the jury for the plaintiff that defendant’s duty required it to place the car of fertilizer in question at the first door of the first warehouse north of defendant’s depot, at Magee, for unloading, and to have its industrial or house track and the car, its equipment and appliances, in reasonably safe condition for the consignee’s employees to unload said freight, provided the jury shall find from the evidence that the usual and customary manner of delivering freight to the consignee at said station was to place car lot shipments of fertilizer at the warehouses of the merchants for unloading.

“If the jury shall further believe from the evidence that defendant negligently failed to spot said car at the first door of the first warehouse and in the usual and customary manner, the plaintiff undertook to unload said fertilizer in the usual and customary manner by moving said car to the proper place for unloading by reason of defendant’s failure to properly place the same; and if the jury shall further believe that the defendant negligently failed to provide a reasonably safe track and a reasonably safe car for plaintiff’s use, and that plaintiff, in attempting to use said track and said car in the usual and customary manner was injured as a result of defendant’s negligence in failing to provide and maintain a reasonably safe track, or in failing to furnish a reasonably safe car, or in negligently failing to properly place said car, and that such injury was directly and proximately caused or contributed to by the negligence, if any, of said defendant company, then and in either such event it will be the duty of the jury to return a verdict in favor of the plaintiff and the jury should so find.”

In addition to the refusal of the peremptory instruction a number of instructions were refused for the defendant which it will not be necessary to notice specifically, as iv-e have reached the conclusion that the defendant was entitled to a peremptory instruction. There is no dispute as to the direction of Williams to the station agent to place or spot the car at the first door of his warehouse which was the first house north of the depo't. There is a difference of understanding between the railroad company and the plaintiff as to which door came within the'description of the first door of Williams’ warehouse. Plaintiff contends that it referred to the first door' going north from the'depot, while the railroad contends that it meant and was understood to mean by the crew which placed the car and by the agent the first door coming from the entrance of the side track to the main line on the north; that is to say, proceeding from the intersection of the house track with the main track to the south, the first door would be-the door in front of which the car was placed. It was the duty of Williams to give specific directions to have the car placed where he desired it. As his language in giving this direction is susceptible to two reasonable interpretations, and as the railroad in good faith, acting upon the reasonable-interpretation of this language, placed the car where it was requested to be placed, there was no negligence or fault on the part of the railroad in placing the car. We think the construction placed upon the language used by the railroad company was equally as reasonable as the construction of the language contended for by the plaintiff, 'and, if there was any fault in the car not being placed at the right place, it was the fault of Williams in not máking his direction more specific and certain. Again we think that, if the car was not at the proper place, it was the duty of the plaintiff, before undertaking to move it, to call attention of the railroad company to the fact that it was not at the right place and requested them to place the car for proper unloading. The car was undoubtedly safe as it was placed, and if the car had been unloaded into the warehouse at the point it was placed, the injury would not have happened.

It was insisted by the appellee that it had been the custom for a number of years to move cars in this way, and that the railroad knew that the car would likely be moved in this way, at least that the custom was sufficient to charge it with such notice.

We do not think the evidence justifies the assumption that the railroad knew that the car would be moved. It placed the car at the direction of the consignee. It requested directions specifically for the placing of the car, and it is not a case of the railroad undertaking to place the car according to its own judgment of where it ought to be, but it undertook to act upon specific instructions and secured the car in such way and by such precaution as the injury could not have occurred except by the intervening cause of the plaintiff and his co-employee releasing the brake, and removing the chock which secured the car in its place. This was the proximate cause of the injury, and it is not a cause attributable to the railroad company.

The cases relied upon by the appellee are not in point •in this case. If the facts warranted the finding-that the habit of the railroad was to place cars to be moved and used by the plaintiff, and that it knew that it would be moved or was placed with the expectation that it would be moved, then the question as to whethei the brake was defective would properly have been submitted to the jury. But under the facts in the present <",sp this conclurion cannct be reached. The railrpad sought specific instructions and obtained them and followed them according to a reasonable interpretation of the language used. It could not be concluded from the evidence here that the railroad company contemplated that the car would be removed from its place. The railroad company, like any other person is answerable for a breach of its duty or for its torts, but it is not answerable for the wrongs of people not under its control and to whom it owed no specific duty.

The judgment will therefore be reversed,-and judgment entered here for the appellant.

Reversed, and judgment here for appellant.