DocketNumber: No. 28713.
Citation Numbers: 133 So. 241, 160 Miss. 102
Judges: <bold>Smith, C.J.,</bold> delivered the opinion of the court.
Filed Date: 3/23/1931
Status: Precedential
Modified Date: 1/12/2023
For more than half a century this court with reasonable uniformity, has adopted the view of the prima facie statute as restated by this court in the case of Alabama V.R. Co. v. Thornhill,
The prima facie statute, appearing as section 1059 of the Code of 1880 was first construed by this court in the case of Chicago, St. Louis New Orleans R. Co. v. Packwood,
"Section 1059 of the Code of 1880 provides that where satisfactory proof has been made of injury to person or property by the running of the locomotives of a railroad company, it shall be prima facie evidence of negligence on the part of a railroad company. This, of course throws on the company when sued, andwhen such evidence has been adduced, the burden of rebutting thispresumption and of establishing by evidence that there has beenno negligence on the part of its employees." (Italics ours.)
In the case of Kansas City, M. B.R. Co. v. Doggett,
Chief Justice WOODS there said: "The fourth instruction for plaintiff was not improperly given. The evidence of the witness Box shows that the tracks of these animals were seen, directly after the injuries, running down the track, for about 300 feet, to the trestle, where they were caught. The counsel for appellant insists that the witness did not mean this. We can only reply that, as it is so written in the record, we feel bound to adhere to it, and to give it its natural meaning. In view of this testimony, the instruction rightfully submitted the settlement of the discrepancy to the jury." And the first syllabus fully sustained and reinforces the declaration in the opinion and the previous announcement in the Packwood and other cases.
This court reversed one case at the instance of the appellant, a plaintiff in the court below, because the trial court had refused to instruct the jury that the prima facie statute applied therein and thereto when there was conflict in the evidence as to how the injury occurred. In Hollingshed v. Yazoo M.V.R. Co.,
"By instruction No. 5, refused by the court, the appellant sought to avail himself of section 1985, Code of 1906, which provides that `proof of injury inflicted by the running of the locomotives or cars' shall make out a prima facie case of negligence. The appellant was clearly entitled to the benefit of this statute. He was injured by the running of appellee's locomotive. There is no dispute about that. The statute applies, regardless of whether the facts attending the injury are in evidence or not. In the V. M.R. Co. v. Phillips,
As I see it, the mischief found by the majority of my brethren as to rules 5 and 6 of the Thornhill case flowed from the pen of Mr. Justice CAMPBELL in 1887, above quoted from the Phillips case. If mischievous it is, it has stood out like a mountain peak, although consistently and continuously assaulted by the railroad companies through their well-chosen attorneys in this court. It stands out as clearly as the noonday sun on an unclouded day.
No new mischief has arisen, and my position in opposing this sudden and drastic change in a fixed rule of law brings to mind the injunction of Holy Writ, found in Proverbs, 22, 28: "Remove not the ancient landmark which thy fathers hath set."
In the case of Mobile, J. K.C. Railroad Co. v. Hicks,
In the Hicks case there was a conflicting issue of facts submitted to the jury. It is stated in the brief that twenty witnesses told the jury how the injury occurred. The prima facie instruction was given and the action of the lower court was approved and the case affirmed. The instruction is found in the brief of appellant as follows: "The jury is instructed, for plaintiff, that under the laws of this state proof of injury inflicted by the running of a train makes a prima facie case of negligence on the part of the railroad company, and it having been shown in this case that Hicks was injured by the running of a train, the burden is on the defendant to meet this prima facie case and show the facts that exculpate it, and if the evidence does not show absence of negligence on the part of the defendant, or unless it shows the existence of contributory negligence on the part of Hicks, the jury must find for plaintiffs."
Subsequently, this case was appealed to the Supreme Court of the United States and there reviewed as Mobile J. K.C.R. Co. v. Turnipseed,
If Judge LURTON, as the organ of the court in the Hicks case, upheld the statute at that time as not violating the Fourteenth Amendment upon the maxim of res ipsa loquitur, he carefully did not say so. The prima facie instruction was given therein. It was a case where there was conflict in the testimony, and where it was asserted that all the facts had been made known, and, if the maxim of res ipsa loquitur settled that case, then it may be well said that all that court then said relative to the constitutionality of the statute was obiter dictum. In this view, we do not concur. The classification and presumption, as we view the decision, arose from the operation of the trains or cars, with resultant injuries therefrom, which operation was then considered dangerous, and which danger has never lessened in the years that have intervened. *Page 122
In the Thornhill case, Chief Justice SMITH, having in mind the decisions of the Supreme Court of the United States in the Turnipseed case, collated our decisions and announced rules fairly deducible from those decisions, as stated in the opinion, with additional cases which we have cited. These deductions, six in number, were later reaffirmed and reapproved in the case of Columbus G. Ry. Co. v. Lee,
Recognizing, as I do, the force, weight and consequences of the judgment of the Supreme Court of the United States in the case of Western Atlantic R.R. v. Henderson,
It is my judgment that the prima facie statute ghost will not down, and that, eventually, the highest tribunal will, of necessity, be called upon to pass on the application of the prima facie statute, and the case at bar, no doubt, would evoke from that court a clear-cut statement which would settle, for all time to come, vexatious questions which are arising, and which will hereafter arise, as to the application of this statute.
If the prima facie statute can only be applied when the maxim res ipsa loquitur is applicable, then the statute is unless, and it is to the interest of litigants that the validity, vel non, of the statute be finally and authoritatively settled.
For the reason that our view has been entertained for so long a time, and has been so often upheld by our court, and retaining in mind its approval in the Turnipseed case, I think the rule of stare decisis should apply to this case, and I therefore dissent.
Cook, J., joins in this dissent.