Louisville & N. R. v. Jones , 134 Miss. 53 ( 1923 )

Holden, J.,

delivered the opinion of the court.

This is an appeal from a judgment for two thousand dollars against the L. & N. Bailroad Company, in favor of appellee, Jones, as damages for injury to the sight of his eye, claimed to have been caused by the negligence of the railroad in emitting a hot cinder from one of its engines, at a road crossing, which got into Ms eye and permanently impaired his sight.

The railroad company urges several grounds for reversal, but we shall pass upon one only, and that is whether or not the lower court erred in refusing to grant a peremptory instruction for appellant upon the ground that the evidence in the case fails to support the charge of proximate negligence.

The record shows a case of this sort: Mr. Jones was travelling in a Ford automobile in the town of Ocean Springs, and, when he approached a public railroad crossing, he stopped thirty feet from the track, and waited for appellant’s train to pass. While sitting in his car, which had a top on it, and the windshield up, a cinder about the size of a pinhead lodged in his eye while the train was passing. He testified that as the engine passed him he saw a flash from the puffing smoke stack and a number of cinders were emitted from the engine, and one of them got into his eye. He said there was no wind blowing from any direction at the time. The train was running fifteen miles per hour, which was in violation of the six mile law in the municipality. After the train passed, Mr. Jones visited a doctor, who extracted the cinder particle, and said that it appeared to have been a hot cinder, and was about the size of a pinhead or less. The sight of the eye was permanently impaired.

The testimony offered by the railroad company proved conclusively, that is, without dispute, two facts: First, that the screen or netting used in the engine was in good and proper condition, and that no cinders of any substantial size could be emitted through this netting; that no netting could be used which would not emit small particles of cinders or sparks, because it would be necessary to have some opening in the netting for the draft to go through. Second, that the faster the speed of the engine the less cinders, and smaller in size, would be emitted through the smoke stack. That is to say, if the engine was exhausting through the smoke stack while going at a rate of five miles an hour, it would throw larger cinders and a greater quantity of them than if it were running at a speed of fifteen or twenty miles per hour.

The railroad company also showed by its testimony that it was not running more than six miles per hour; that the engine was not working steam at the time it passed over the crossing in question, but was “drifting” into the station a short distance away, where it was to stop. The employees also testified the engine was not throwing any cinders whatever at that point; was not puffing steam there; and no cinders could have been emitted or thrown through the netting of the engine, which was in good order. Of course, the conflict in the testimony offered by the plaintiff and that of the defendant was settled by the jury in favor of the plaintiff below, and is not to be disturbed here.

The point urged by the appellant railroad company is that the proof failed to show the railroad company was negligent in operating with a defective cinder netting in its engine, and that no contributing negligence is shown on account of the unlawful speed, because the speed did not proximately cause the injury. The case was tried below on the theory that the combined negligence of the engineer in exceeding the speed limit and the negligence of the railroad company in using a defective cinder netting caused the injury to the appellee.

We think the appellee must fail in his suit, for the reason the undisputed evidence in the case shows the railroad company was not using a defective cinder netting, but that it was in good condition, and the small cinder emitted by the engine, which lodged in appellee’s eye, was not due to faulty screen or netting, because such a small particle would be emitted through a reasonably good netting; and therefore the emission of the small cinder which entered appellee’s eye was not negligence ‘on the part of the railroad company.

And it appears conclusively in the record that the excessive speed of the engine did not proximately cause the injury, because the undisputed testimony shows there was less likelihood of a cinder being thrown upon appellee while running at a speed of fifteen miles per hour than if running at five miles per hour. The unlawful speed was not the proximate cause of the cinder leaving the engine and entering appellee’s eye.

So we conclude the appellee failed to show negligence which proximately contributed to the injury either through the violation of the speed law or through the failure of the railroad to operate with a suitable netting in the smoke stack of its engine. We do not think either of these charges of negligence was sustained by the proof, for it is clear that, even though the engineer was running at an excessive rate of speed, still the speed did not necessarily cause the cinder to fall upon appellee, the conclusive proof being to the contrary; and the emission of a cinder the size of a pinhead is not, in our opinion, negligence per se, and certainly it is not negligence where it is shown the netting used in the smoke stack was in good condition, and was the proper equipment.

The point is raised by appellant that the story told by the appellee is so unreasonable and physically impossible that the evidence is too unreliable to support a verdict.

We note the automobile in which appellee was sitting was a Ford car with a low top which extended out over the appellee, that the windshield was up between appellee and the engine, and no wind was blowing at the time, and yet the small cinder left the engine and drifted thirty feet toward the automobile, and then went around, over, or under the windshield and up into appellee’s eye.

We confess the travel of this cinder was rather remarkable; however, it was not an impossible story, and the jury was the sole judge of the facts, and we are not prepared to say the judgment would be disturbed on this point; but for the reasons pointed out above we find the appellee has no case.

The judgment of the lower court is reversed, and judgment entered here for appellant.

Reversed, and judgment here for appellant.

Reversed.