Mobile and Ohio Railroad Company v. Stroud

Citation2 So. 171,64 Miss. 784
CourtUnited States State Supreme Court of Mississippi
Decision Date16 May 1887
PartiesMOBILE AND OHIO RAILROAD COMPANY v. ELVIRA STROUD

April 1887

APPEAL from the Circuit Court of Lauderdale County HON. S. H TERRAL, Judge.

Mrs Elvira Stroud brought this action against the Mobile and Ohio Railroad Company to recover damages for the killing of her husband by the train of the defendant.

She alleged in her declaration that in October, 1884, her husband, George Stroud, on his way from the city of Meridian to his home in the country, being east from the depot of said company, and traveling in the route usually traveled by him between his home and said city, while crossing the track of the Alabama Great Southern Railroad Company, which track ran parallel to defendant's track, and while upon the track of the Alabama Great Southern Railroad Company, he perceived a train approaching on the Alabama Great Southern track, and in order to avoid the danger therefrom he crossed over to defendant's track, at which time a switch engine of defendant's was about sixty feet from him, but was not observed by him; that no notice of the approach of this engine was given either by ringing the bell or blowing the whistle; that this was in the corporate limits of the city of Meridian, and the engine was running at a greater rate of speed than six miles an hour; "and she avers that the engineer in charge of said engine, who was the agent and servant of defendant, did or might have observed him, the said George Stroud, and by the use of ordinary care and diligence might have prevented any harm or injury being done him at the time by said engine; but plaintiff avers that by reason of the wrongful and negligent act of the said defendant in failing to ring the bell and blow the whistle attached to said engine, and in failing to stop said engine the said engine ran over the said George Stroud, from the effect of which wrongful and negligent act the said George Stroud died."

To this declaration the defendant demurred, and the demurrer was overruled.

On the trial the evidence for plaintiff tended to show that George Stroud was a man about sixty-five years old and deaf in one ear; that on the day in question he was going home from the city of Meridian and was walking up the track of the Alabama Great Southern Railroad, some three hundred and fifty yards from the Union depot, when he saw a train approaching thereon, and in order to avoid it he crossed over and on to defendant's track, which ran near to and parallel with the Alabama Great Southern track, and proceeded to walk in the middle thereof; that when Stroud got on defendant's track a switch engine was between sixty and ninety feet in his rear, and was running at from fifteen to thirty miles per hour, this being in the corporate limits of Meridian; that Stroud, continuing to walk in the middle of the track, was overtaken by the engine, run over, and killed by it; that one Hattie Green, seeing the danger of Stroud, tried to give the engineer warning, but that he was not on his seat and was looking to one side and out of his engine, and that the brakeman was shoveling coal into the engine, so that they did not observe her; that the engineer, when within eight feet of Stroud, put on brakes and reversed his engine, but not in time to prevent the injury; that the track was straight and there was nothing to obstruct the engineer's view up to the point where Stroud was killed.

The evidence for the defendant tended to show that the engineer saw Stroud when he got off the Alabama Great Southern track but did not see him any more until he was killed; that the engineer was engaged in oiling certain machinery on the inside of his cab and the brakeman was putting coal into the engine. The jury found for the plaintiff and assessed her damages at twenty-two hundred dollars, and the court gave judgment to that effect. The defendant appealed.

Judgment reversed and cause dismissed.

Fewell, Watkins & Brahan, for the appellant.

1. The demurrer to the declaration ought to have been sustained.

If the plaintiff's intestate was guilty of negligence which contributed directly or proximately to his death the defendant is not liable, although the defendant violated the statute or was otherwise guilty of negligence. V. & M. R. R. Co. v. McGowan, 62 Miss. 682.

It is well settled that it is negligence for one to go upon a railroad track, even at a crossing, without looking to see whether a train be approaching. R. R. Co. v. Houston, 95 U.S. Supreme Ct. R. 697; 2 Am. and Eng. Ry. Cases 191; 6 Ib. 5; 12 Ib. 64; 30 Am. R. 371; 8 Am. and Eng. Ry. Cases 420; 10 Ib. 726; 2 Ib. 124 and authorities cited. See, also, Patterson on Railway Accident Law 190, § 199.

It is obviously more negligent to get on a track at a place other than a crossing without looking; it is recklessness to get on a track at a place other than a crossing where trains are frequently passing, as in a yard where trains are being constantly moved, without looking. The law says it is negligence to step on a track without looking; the declaration says Stroud stepped on the track without looking; to say that Stroud was without fault is to contradict the law as laid down and the fact as specifically alleged.

It is not necessary to invoke the rule that the plaintiff's pleading is to be taken most strongly against her; we insist that there is not even an inference to be drawn from her averments which would support an action.

2. Now, did Stroud look before getting on the track of defendant? If he did, he must have seen the approaching train; and if he did see it, he was wanting in ordinary care in getting in its way; if he did not look, the fact of not looking was culpable want of ordinary care. We say that if he looked he must have seen it, because the track was straight and there was no obstruction.

There was no necessity for his being there in the first instance, or his stepping on defendant's track when he did--none is alleged and none is proven.

Will it be contended that the going on the track in this way did not directly or proximately contribute to his death? Surely not; surely, it was a thing likely to result in his injury for him to step on a track under the circumstances and conditions stated.

There can be no pretense, in view of the evidence, that the defendant's servants willfully ran over Stroud, and we presume no such thing will be argued; it was not so alleged.

To sustain this verdict and judgment would be to abrogate the law that declares railroads entitled to a clear track, and to say that they are responsible in every case for running against persons; indeed, it would in effect make railroad companies insurers of the lives of persons on their tracks. We do most earnestly urge that it would be difficult to conceive a stronger case of want of ordinary care and caution than that of Stroud as presented by the pleadings and by the testimony. There is no view that can be taken of the testimony which excuses his conduct.

J. W. Fewell, on the same side.

The appellant insists that if Stroud's own negligence contributed to the accident proximately, his widow cannot recover though the defendant was guilty of negligence; whereas, it seems to be contended for appellee that even admitting that the plaintiff's husband was guilty of proximate contributory negligence, yet, if the defendant was guilty of negligence, either of omission or commission, it is liable.

That there is much confusion in the books on this subject, as upon a great many other subjects, there can be no doubt; but I submit to the court that in this State the true rule is this:

The railroad company is entitled to a clear track; but it is bound to use it with due regard to the safety of people, and in towns engines and trains must be run with care. The servants of the company have a right to assume that persons on the track, who appear to be able to take care of themselves (i. e., who appear not to be laboring under any disability), will get off the track, and such servants, under that assumption, are not bound to slacken the speed of a train when a man is seen on the track until there is a reason to infer or suspect or believe that such person is not going to do as a man is to be expected to do, i. e., get out of the way. As soon as it is seen that such person is not conscious of his danger--is not going to do his duty to himself- -then the engineer's duty is to make every effort to protect such person from the consequence of his negligence or recklessness or unconsciousness of his danger.

The law requires every man, in every situation of life, to exercise his instincts and duty of self-preservation. A man has no right to use a railroad track as a footway; and his doing so is at his own peril, and he is held responsible to a high degree of care to protect himself from the danger which is incident to such situation.

The counsel for appellee seem to ignore the rule, so well settled in this State (and almost universal), that if Stroud was guilty of negligence, which was a proximate cause of his death, the defendant is not liable, though guilty of negligence; and yet they are driven by the very logic of their own argument to refuge in a purely imaginative theory, viz.: that of a wanton and willful and malicious running over of Stroud. They assume conduct of which there is not the slightest testimony, viz.: a wanton and reckless running over of Stroud, and then inveigh against the enormity of the act.

There is not a scintilla of testimony, as there was no allegation of any such conduct. If the defendant's engineer willfully run over Stroud, or recklessly did so, or by his action evinced a reckless disregard of Stroud's life, the company would be liable--no sane lawyer would dispute that pr...

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