Connally v. Louisville & NR Co.

• Citation: 4 F.2d 539
• Decision Date: 18 February 1925
• Docket Number: No. 4475.,4475.
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: CONNALLY et al. v. LOUISVILLE & N. R. CO.

4 F.2d 539 (1925)

CONNALLY et al. v. LOUISVILLE & N. R. CO.

No. 4475.

Circuit Court of Appeals, Fifth Circuit.

February 18, 1925.

J. H. Mize, of Gulfport, Miss., for plaintiffs in error.

Harry H. Smith, of Mobile, Ala., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the plaintiffs in error to recover damages for the death of Margaret Connally, which was attributed to the negligence of the defendant in error in operating a train at a rate of speed in excess of that permitted by law at the place within the corporate limit of the city of Gulfport, Miss., where the deceased was struck and killed. The defendant pleaded not guilty, and gave notice that it expected to show that the death of the deceased was not due to its negligence, but to the voluntary act of the deceased in knowingly and purposely walking in front of the moving train, with the purpose of committing suicide. At the conclusion of the evidence the court instructed the jury to find a verdict for the defendant. That ruling is assigned as error.

The deceased was struck by the engine of a train going west through Gulfport, about 9 o'clock in the morning, at a place, not on a street or public highway, but between two streets, which the railroad track crossed. Uncontradicted testimony of eyewitnesses was to the following effect: The deceased was in the vicinity of the place where she was killed some time before the train came. Before the train was in sight she was sitting on the side of the roadbed. When the train was approaching, and when it was about half a mile from where the deceased was struck, the railroad track between those points being straight, the engineer, who was on the right side of the engine, saw the deceased walking, in the direction the train was going, in a pathway on the right-hand side of the track, where she was in no danger from a passing train. She continued to walk in that pathway until the train got pretty close to her. Then she turned around, looked at the train, waiting there in the pathway until the train came closer, then went on the track, stood between the rails facing the train, and then knelt or squatted down on the track in front of the rapidly approaching train. When the deceased went on the track the approaching train was running at a speed of more than 20 miles an hour. At that place the law did not permit the running of a train at a greater rate of speed than 6 miles an hour. After...