Opinion
No. 27553.
April 1, 1929.
1. CARRIERS. Instruction, relating to carrier's liability in case loss was result of act of God as immediate, proximate, and sole cause, held sufficient.
In action against railroad for damage to seed by reason of flood while in transit, instruction as to liability of carrier in case damage was result of an act of God, and requiring violent disturbance of the elements to be the immediate, proximate, and sole cause of loss or damage not concurred in by negligence of carrier, held to sufficiently present approximate exposition of law applicable to controlling facts.
2. CARRIERS. Carrier had burden of proving that damage to seed in transit from flood was caused by act of God.
Railroad had burden of proving that damage to seed while in transit by reason of flood was caused by an act of God, and that violent disturbance of elements constituting such act of God was immediate, proximate, and sole cause of loss or damage.
3. CARRIERS. Instruction, to effect that railroad was liable for flood damage in case damage would not have resulted if train stayed in yard, held properly refused.
In action against railroad to recover damage to seed by reason of flood while in transit, instruction, to effect that railroad was liable in case the seed would not have been injured or damaged if train had been kept in railroad yard held properly refused, in that it is no proof of negligence that because, after an injury has resulted, it can then be seen how injury might have been avoided.
4. CARRIERS. Negligence of railroad employees in attempting to move freight train during threatened flood held for jury.
Negligence of railroad employees in attempting to move freight train at time that track was seriously threatened with flood waters held for jury under evidence.
APPEAL from circuit court of Washington county, HON. S.F. DAVIS, Judge.
Wasson Wasson, for appellant.
The theory of the appellant's case is that the loss of the goods in the hands of the appellee had been established by proof, and it then devolved upon the appellee to prove that the loss was caused by an act of God and that it was free from fault. Chicago, etc., Ry. Co. v. Moss, 60 Miss. 1002; Chicago, etc., Ry. Co. v. Abels, 60 Miss. 1017; Johnson v. Ry. Co., 69 Miss. 191; Newberger v. Ry. Co., 75 Miss. 307; Michaels v. N.Y. Cent. Ry. Co., 86 Am. Dec. 418; Transportation Co. v. Tiers (N.Y.), 64 Am. Dec. 396.
The appellee did not meet the burden upon it of showing that it was free from fault or negligence. On the contrary, appellee was negligent and its negligence was the cause of the damage complained of. The peremptory instruction requested by the appellant should have, therefore, been given and the lower court was in error in not giving it.
Before the train left the Greenville depot there was a panic among those who had gone to the depot for the purpose of going out of Greenville on a train of the appellee. This panic was caused by a report that the water was coming over the Greenville protection levee, or that it had broken. This train was sent out in the face of these undisputed conditions known to the train master, who had absolute control of the movement of the trains. Is this what a prudent man would have done under such conditions? The road master did the prudent thing when he sent the section foreman out to make exploration. The train master did the foolish thing when he sent the train out without waiting for a report from the section foreman, or without having made any investigation as to where the flood water was and what progress it was making. If there was reason for the road master to send the section foreman out to make an exploration and report back, there was reason to wait for a report from this section foreman. And it was nothing less than recklessness upon the part of the train master to send the train out of Greenville under the known conditions of danger. The train master knew as everybody knew, that the flood waters would overflow the tracks, and it was simply a question as to when it would occur and the effect of such an occurrence. Any reasonable investigation by the appellee as to where the water was and the progress it was making would have disclosed, almost to the minute, when the water would reach the track.
Percy Percy, for appellee.
A clear and simple theory of law was presented to the jury by the instructions of the court after the court had refused to grant to both the appellant and the appellee a peremptory instruction. The court instructed the jury for the defendant that the flood was an act of God and that if the flood was the proximate cause of the damage, the jury should find for the defendant. If the defendant's negligence contributed to the damage, the damage was not proximately caused by the act of God and the burden was on the railroad to show that its own negligence did not contribute to the damage. With this theory in mind the plaintiff asked for and the court gave an instruction, as follows, in part: "To constitute an act of God it must be the immediate, proximate and sole cause of the loss or damage, not concurred in by the negligence of the defendant; and the burden of proof is upon the defendant in this case to show from the weight of the evidence not only that the loss and damage to the seed in question was caused by a violent flood, but that the defendant and its employees were free from fault, which did not contribute to, or co-operate with the flood in causing loss or damage to the seed." This correctly stated the law, but to clarify it from the point of view of the defendant and in order to explain what the duty of the defendant was for the breach of which it would be held for negligence, the defendant asked for and was given two instructions, showing that the railroad's duty is to act as careful, reasonable men would act under the circumstances to protect the property entrusted to them and their actions are to be judged in the light of conditions then surrounding them and not in the light of what subsequent events showed could have been done, and their duty is to use, actively and energetically, all means at its command, or that might reasonably be expected of a company engaged in their business to possess, to meet the emergency. If these instructions, taken as a whole, pronounce the sound rule of law governing this case, there is no reversible error. Appellant quotes from four Mississippi cases: Chicago, etc., R.R. Co. v. Mississippi, 60 Miss. 1002; Johnson v. Railway Co., 69 Miss. 191; Newberger v. Ry. Co., 75 Miss. 307; and Chicago, etc., Ry. Co. v. Abels, 60 Miss. 1017. These cases show that in a suit on a special contract the burden of proof is on the common carrier to exculpate itself from negligence. Although this is not a case on a special contract, but is a case in tort, we can see how these authorities would be in point if the lower court had not required the appellee to prove not only that the damage was done by an act of God, but was done without the negligence of appellee. The lower court, in an instruction given for the plaintiff, propounded to the jury the principle laid down in those cases in these unequivocal words: "And the burden of proof is upon the defendant in this case to show from the weight of the evidence not only that the loss and damage to the seed in question was caused by a violent flood, but that the defendant and its employees were free from fault which did not contribute to or co-operate with the flood in causing loss or damage to the seed." In other words, the court imposed on the defendant the maximum burden which any court has ever imposed and which many courts on principle reject.
Only two other authorities are quoted in appellant's brief and neither of them can lend any comfort to the appellant, unless we entirely misconceive the meaning of those cases. Michaels v. N.Y. Cent. R.R., 86 Am. Dec. 415, is simply one of a large line of authorities holding that when goods are injured by an act of God and the act of God would not have befallen the goods except for the negligent delay of the carrier, the carrier is responsible. There is another long line of authorities holding that under such circumstances the delay is not the proximate cause of the injury and therefore the carrier is not liable. We do not know which line of authorities the Mississippi court would follow in a case where that point would be raised, but it is not raised here. If the court feels that it needs any authorities on the general duty of a carrier when goods in its possession have been injured by an act of God, or an act of God combined with the carrier's own negligence, we will refer them to the most extended collection of authorities we have been able to discover, to-wit: Seaboard Air Line v. Mullen, L.R.A. 1916D, 982; Gulf Coast Transp. Co. v. Howell, L.R.A. 1916D. 974; St. Louis R.R. Co. v. Dreyfus, L.R.A. 1915D 547; Armstrong v. Illinois Central R.R. Co., 29 L.R.A. (N.S.) 671.
If the principles of law were soundly laid down by the lower court in the instructions it gave, the appellant's only ground of complaint must be the refusal of the court to grant the peremptory instruction asked for by the plaintiff. Such an instruction should have been given only if this court believes no jury had a right to find on the facts introduced in this case that it was not the defendant's negligence, but the act of God which caused the damage. It was conceded that the flood waters from the Mississippi river destroyed the seed, and we take it there can be no dispute that flood waters from such a break are classed as an act of God. Still the flood waters would not be the proximate cause of the injury, if the carrier's own negligence contributed to the loss. If a jury had a right to say that under these circumstances the carrier acted as a reasonably careful person would have acted in such a time of crisis and disaster, this case cannot be reversed. There are three conceivable acts of negligence appellant may argue the carrier was guilty of in this case.
1. The mere acceptance of goods for transportation by the carrier after it knew the levee had broken. This was not suggested as an act of negligence either by appellant's trial attorney in the lower court or by counsel for appellant in his brief in this court. If this court lay down the rule that at the time of a threatened flood it was the duty of the carrier to refuse shipments of freight offered it, that rule would paralyze the most helpful arm of assistance stretched out to the public during these recurrent times of tribulation in the delta and would command carriers to shirk the very highest of their duties.
2. The fact that the appellee after receiving the shipment from the appellant tried to get it out of Greenville and the threatened area instead of holding it in Greenville wherein the knowledge of after events it would probably not have been injured. This point was not stressed in the trial of the case, but seems to be the point that appeals most to appellant here. If on the 21st of April reasonable men knew that Greenville would be safe for lives and chattels, the point would be well taken, but this is exactly what reasonable men did not know and what was in fact not true. People in masses fled from the town during that day and owners of freight made every effort to have it transported, though they (and the appellant was of that number) knew the facts of the situation as well as the carrier did. Not only did no one know whether the flood waters would enter Greenville, and, if so, to what depth, but those in the best position to know were exceedingly apprehensive that another break would occur north of Greenville and south of Mound's Landing's break, and if such a break occurred, the danger to lives and property in Greenville would have been tremendous. Therefore, it can surely be said that the appellee acted reasonably in attempting to remove from a perilous locality freight which the owners themselves asked it to remove because of that peril.
3. After starting from Greenville the servants of the appellee were guilty of negligence in attempting to go through the water which covered the tracks immediately west of Paducah. What is negligent under one set of circumstances may be the highest care under another set of circumstances. If the appellee had had another track to transport this freight over and that track was to its knowledge perfectly safe, it would have been negligent to have used a track covered with water, or, if the carrier knew that the freight it was transporting would have been perfectly safe in Greenville, it would probably have had no right to take the hazard of a trip across the flooded track. But the court will realize that there was no safe place in all of Washington county and no way for the appellee to transfer freight or passengers to safety except over its one track which passed by Paducah, nor was water standing over a track a particular or unusual hazard in the delta. To drive this train across the tracks submerged to the depth of two inches under these circumstances was, we submit, a reasonable thing to do, certainly it was a thing which a jury could properly have said as they said here was reasonable. If the jury believed that there was nothing the matter with the track of the train, that in such an emergency and in view of other and similar experiences the train crew acted wisely in attempting to pass over this track, although it was under water. This court will not set aside the findings of the jury that the appellee was without negligence. Smith v. Western Ry. of Ala., 11 L.R.A. 619.
The trial judge submitted this case to a jury under pertinent instructions and upon full evidence, and the jury returned a verdict for the defendant railway company. The evidence discloses, and in view of the verdict we must assume that the jury found, the salient facts as follows:
On the morning of April 21, 1927, between six and seven o'clock, the levee on the east side of the Mississippi river broke at Mound's Landing, about eighteen miles by air line north of the city of Greenville, as a result of which an area approximately sixty miles wide east and west, and about one hundred miles long from the middle of Bolivar county south, was inundated, at an average depth of between five and six feet. Not only was this overflow unprecedented, since the establishment of the public levee system, in extent and depth, but a feature more momentous was that the velocity with which the waters moved downward and outward into and over the areas affected was at least three times that which had ever been seen or heard of in any overflow within memory.
At a point only about two miles north of Greenville, there was a section of levee known as Miller's Bend. All those in authority, and upon whose skilled judgment there was the greatest dependence, had regarded the levee at the latter point as being weaker, the more liable to break, and therefore more dangerous than the levee at Mound's Landing. When the latter broke, the increased apprehension that the weaker one at Miller's Bend, almost within the outskirts of the city, would soon break, resulted in great excitement among the inhabitants of the city, in many of whom the state of their fear rose to a panic — this because in conjunction with the break already in existence it had been and was the prediction and judgment of those in the best position to make dependable forecasts that a break at Miller's Bend would inevitably and quickly submerge the entire city of Greenville, and every house and place of storage of goods and property within its bounds.
The western terminus of the line of appellee railway was in the city of Greenville. On the day of the break at Mound's Landing, appellant delivered to appellee in Greenville for transportation two hundred seventy-five sacks of sagrain, and three hundred forty-five sacks of peas, in the aggregate value of approximately three thousand five hundred dollars; the loading into the cars having been completed about five o'clock that afternoon. The next freight train due to leave on appellee's line was at eight thirty o'clock the next morning. At eleven o'clock of the night of the 21st, the day of the break and the day of the loading as aforesaid, a freight train of appellee with two locomotives reached Greenville from the east. The crew of this train had seen no water on or threatening the line of the railway. At this hour, also, the section foreman of that section of the track, which according to previous experiences would be the earliest affected, was traversing the involved area on a motorcar, but had seen no water.
In this situation at the said hour of eleven o'clock, the railway company was faced with this dilemma: It had in hand two freight locomotives that had just arrived, and it had nearly forty cars of freight loaded and ready to move; it had a track open to the east to the hills and points of safety. But how long this track would remain open no man could know, except that it would not be more than a few hours, or at most a day or thereabouts. On the other hand, to remain standing in Greenville there might come that night, or at any subsequent hour, the waters from the Miller's Bend break then anticipated, and which, had it happened, would have ended any hope of saving any of the nearly forty cars of goods and property in its hands.
Confronted with these two alternatives, the railway determined upon the course of taking what then appeared to be the best chance. It turned its locomotives to the east, and the crew without stopping for food proceeded with all the energy of which its men were capable to prepare a train to make the run to the hills. In one hour and ten minutes the train left the city of Greenville, that is, about ten minutes past midnight, stopping at sidetracks long enough to pick up additional cars ready to go. About twelve-twenty all this was finished, and the train got definitely under way beyond the city limits. When approaching a small settlement called Paducah about two and one-half miles east of Greenville, it was discovered that water, apparently about two inches deep, had come upon the tracks at what was described in effect as a comparatively low place. It was thought by the engineer that by proceeding cautiously here, but nevertheless without stopping, he could reach higher ground just ahead, and thence be able to make time without further hindrance; it appearing from the evidence that in this territory, in the light of previous experiences, it was not considered unwise to proceed when only a few inches of water was on the track. However, in a few moments the train came suddenly to a stop, and it was discovered that one of the cars at about the middle of the train, consisting as it did of nearly forty cars, had got out of alignment, thereby automatically putting on the air brakes on every car and making it impossible to move either forward or backward. The crew then promptly cut the locomotives and tenders loose from the train in the effort to escape with the locomotives, but having so done and having moved the locomotives forward only a short distance, the track ahead was seen to rise up in the manner described by the witnesses "like palings on a picket fence," and so rapidly did the waters rise that some of the crew betook themselves to trees, where they remained until rescued late the next day. The freight cars were partially submerged and so remained for about sixty days, with the result that the freight of appellant was practically ruined; hence this suit.
A view of the unprecedented and theretofore almost unbelievable rapidity with which these waters came down, and thereupon rose in height, is obtained from the testimony of Mr. G.G. Rowland, who lived at Paducah and only a short distance from the point where this train was overtaken and inundated. He says that about twelve-thirty o'clock that night — and which therefore was about twenty minutes after this train left Greenville, he heard the fire whistle in Greenville, a signal which he had understood was to be given if the waters should come over the city protection levees. He called the city police station by telephone and asked whether the city levee had broken, and was answered in the negative. On the evening before he had placed a white rag in his yard at a point where some backwater from a neighboring lake had appeared, and after telephoning as aforesaid, he looked at this marker and found no change in the water. He went back into his house, but remained awake. In about thirty minutes he heard a peculiar noise "like a stiff breeze blowing through the tree tops," whereupon he went out immediately and found that the waters were everywhere, that in a few minutes horses were swimming in his yard, and that within thirty minutes after he heard the noise of the water as aforementioned, the water was three feet deep in his house, the house being four feet above the ground; in short, that within not exceeding sixty minutes after twelve-thirty o'clock the waters had appeared and had risen to a height of seven feet.
The court gave the following instruction for the plaintiff: "The court instructs the jury that the plaintiff is entitled to recover in this case, unless the jury believe from the weight of the evidence that the seed sued for were lost or damaged by what is termed, under the law, an act of God; and, to constitute an act of God, it must arise from some violent disturbance of the elements, such as a storm, tempest or flood, and must be the immediate, proximate and sole cause of the loss or damage, not concurred in by the negligence of the defendant; and the burden of proof is upon the defendant in this case to show from the weight of the evidence not only that the loss and damage to the seed in question was caused by a violent flood, but that the defendant and its employees were free from fault, which did not contribute to, or co-operate with the flood in causing loss or damage to the seed."
The above instruction — except for a slight involvement in the language of the last three lines, and also in respect to the doubtful propriety of the use of such a strong expression as is found in the clause "free from fault" — correctly and with an admirable succinctness states the law on the subject as found in the weight of authority in this country, and particularly so when taken in connection with the two instructions granted at the instance of defendant, as follows:
"The court instructs the jury for the defendant that in the emergency following the break in the levee the only duty of the railroad was to use, actively and energetically, all means at its command, or that might reasonably be expected of a company engaged in their business to possess, to meet the emergency and save property confided to their care from injury; and only neglect to use the means which prudent, skillful men in their business might ordinarily be expected to use in such an emergency will subject them to liability."
"The court instructs the jury for the defendant that in a crisis such as you may believe from the evidence followed the breaking of the Mississippi River levees, the defendant railway company and its employees are under the duty to act as careful, reasonable men would act under the circumstances to protect the property entrusted to them and their actions are to be judged in the light of conditions then surrounding them and not in the light of what subsequent events showed could have been done."
If the foregoing had been the only instructions asked and given, then without further discussion we would unhesitatingly say that, taking them together as aforesaid, they presented a fairly approximate exposition of the law applicable to the controlling facts and moreover were entirely sufficient for the case. That the burden of proof was properly placed by these instructions is sustained by Yazoo M.V.R.R. Co. v. Craig, 118 Miss. 299, 318, 79 So. 102. But appellant complains that the court refused an instruction requested by appellant marked No. 3 in this record. This instruction involves, as a material part of its language and as an essential portion of an element sought to be thereby injected into the case, the proposition that, if "plaintiff's seed . . . would not have been injured or damaged if said train had been kept in its yard at Greenville, . . . the defendant must bear the loss." It is true that this language was carefully wrapped in other terms, nevertheless it was susceptible of an unjust construction, in view of the fact that, contrary to general expectations, it turned out that the levee at Miller's Bend did not break, and although the waters did partially submerge the city of Greenville it happened that freight, if stored in appellee's freighthouse in Greenville, would not have been reached by the water that afterwards came into the city. "It is no proof of negligence that because after an injury has resulted it can then be seen how the injury might have been avoided." Smith v. Western Ry., 91 Ala. 455, 8 So. 754, 11 L.R.A. 619, 24 Am. St. Rep. 929. The appellant complains also of the refusal of the court to grant its fourth requested instruction, but everything in that instruction is substantially embraced within the other instruction granted to plaintiff, hereinbefore quoted and set out in full.
The other assignments of error, including the complaint that the court refused to grant a peremptory instruction in favor of appellant, are all substantially embraced or bound up in the contention of appellant that it was negligence, and therefore a concurrent cause of the damage, on the part of the railway company in braving the dangers of the flood when its track was seriously threatened, and that the train should not have been sent out in the absence of reports from along the threatened area up to the very time when the train departed. Even so, the undisputed testimony shows that a section foreman was out on this threatened section in a motor car under duty to report at the first sight of danger. He had seen none up to the very moment when the waters caught the train. He had been as far out as twelve miles, and to Elizabeth, at which point, according to all previous experiences in prior floods, the waters first reached in their southward course, and was on his return still without seeing any flood waters until he arrived at Paducah, which point he reached at about the same time as the train. If, before leaving the yards in Greenville, which was at twelve-ten, or even if when the last car was picked up on the outskirts, that is to say, the hour of the final departure about twelve-twenty, the railway had telephoned to Mr. Rowland at Paducah, the information would have been received from him that there were no flood waters in sight; that the marked place in his yard in sight of the railroad track showed no change since the falling of night. It is undisputed that any information they would have received along the line, even up to the last moment of final departure, would have been to the same effect. Unless these railway employees are to be held to an understanding of the future, and to a prescience beyond other men, there is nothing in the record of the testimony, and no logical or reasonable inferences to be drawn therefrom, upon which the jury could justly have attached the blame of an actionable concurring negligence upon these employees. The testimony is undisputed that, in all the recurring floods in all the past within memory, no flood waters had ever moved outward and downward with the celerity of this particular visitation. Under all previous experiences, the water was not to have been expected for several hours, or even for a day, at the point where it overtook this train. The unexpected rapidity with which it came and rose is shown, not only by the testimony of Mr. Rowland, above mentioned, but is pictured in an equally vivid way by Mr. C.P. Williams, a lifelong resident of the county, and who for fifteen or twenty years has been one of those in charge of levees in all the high-water fights in that time. He testified that he was at his home four miles below where this train was caught, that he himself was caught about one-fourth of a mile from his house, and that he had the greatest difficulty in reaching his dwelling, which, when he reached it, running as fast as he could, was surrounded by water knee-deep in so short a time, and that the water was nine feet deep in six and one-half hours thereafter.
Upon the whole case we think the record is free of any materially harmful error, that the correct result was reached, and that the judgment should be affirmed. Nashville C.R.R. Co. v. David, 6 Heisk. (Tenn.), 261, 19 Am. Rep. 594; Seaboard Air Line Ry. v. Mullin, 70 Fla. 450, 70 So. 467, L.R.A. 1916D, 982, Ann. Cas. 1918A, 576; Gulf Coast Transp. Co. v. Howell Son, 70 Fla. 544, 70 So. 567, L.R.A. 1916D, 974; St. Louis, etc., R.R. Co. v. Dreyfus, 42 Okla. 401, 141 P. 773, L.R.A. 1915D, 547; Armstrong, Byrd Co. v. Ill. Cent. R.R. Co., 26 Okla. 352, 109 P. 216, 29 L.R.A. (N.S.) 671; New Brunswick Steamboat Canal Transp. Co. v. Tiers, 24 N.J. Law, 697, 64 Am. Dec. 396; and see also the numerous authorities cited in the opinions and notes of the annotated reports of the foregoing cases.
Affirmed.