Alabama & Vicksburg Railway Co. v. Lowe

• Decision Date: 28 October 1895
• Citation: 73 Miss. 203,19 So. 96
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. A. B. LOWE
• Court: Mississippi Supreme Court

19 So. 96

73 Miss. 203

ALABAMA & VICKSBURG RAILWAY CO. v. A. B. LOWE

Supreme Court of Mississippi

October 28, 1895

October 1895

FROM the circuit court of the first district of Hinds county HON J. B. CHRISMAN, Judge.

Action by a father to recover damages for the death of his infant daughter.

The injury complained of in this case occurred at a crossing in a populous portion of the city of Jackson, and on one of its most frequented streets, several of which the track crosses in that portion of the city. At the point in question the track is laid in the middle of and along one of the streets that runs at right angles with those that it crosses. Between this point and the next cross street to the east thereof there is a decided curve in the track, and the train that caused the injury, which was behind time, approached around this curve at what numerous witnesses for the plaintiff declared to be a high rate of speed--that is to say, from fifteen to twenty miles an hour. The witnesses for the plaintiff further testified that no alarm was given by ringing the bell or blowing the whistle, and that the defendant's servants in charge of the train were not keeping a proper lookout in coming around the curve; that when the train was still three or four hundred feet east of the point where she stood, and she saw the smoke of the engine and knew that it was approaching, the nurse of plaintiff's two children, an old colored woman, attempted to cross with the children from the north to the south side of the street, in the middle of which the track lay, in order to see some performing bears, which had drawn quite a crowd to the spot; that the nurse carried the younger of the children in her arms, and held by the hand the elder, who was a little girl of only three years of age; that when she had reached and was standing on the track, there was an outcry that the bears had gotten loose, and considerable excitement and commotion in the crowd, with people calling to her to get off the track, that the train was coming, and she became too terrified and bewildered to do anything; that at this juncture a negro man, William Hulitt, sprang out of the crowd and dragged the nurse, with the infant that she carried, from the track, but the little girl she was leading notwithstanding Hulitt's second effort to save her also was run over by the train and instantly killed; and that the nurse had ample time, after starting, to have crossed the track with the children before the passing of the train, and would have done so in safety but for the sudden alarm into which she was thrown.

The defendant adduced evidence in conflict with a great part of the foregoing. On the cross examination of the plaintiff, he was interrogated by defendant's attorney as to the age at which children became a help and source of income to their parents instead of an expense. Plaintiff's counsel objected to this line of inquiry, and, the objection being sustained, the defendant excepted. After the recess taken by the court for dinner, the plaintiff's counsel withdrew the objection, and offered to allow the examination to proceed, the court agreeing thereto, when the defendant's attorney declined to do so, for the reason that the court, in the presence and hearing of the jury, had pronounced the evidence not competent, and the examination would be fruitless.

The court gave the following instruction for plaintiff, which was objected to by defendant:

"2. If the jury believe from the evidence that, at time and place of the accident in question, the defendant's train was being run at an unlawful rate of speed, and that the death of the plaintiff's child was caused by the negligence of defendant's servants in charge of the train, then, plaintiff is entitled to recover, unless the nurse in charge of the child failed to use reasonable care and caution, and such failure directly contributed to the injury; and, in determining whether she was guilty of contributory negligence, the jury may consider the situation in which she then was, and judge of her conduct in the light of all the facts and circumstances surrounding her at the time."

The court refused to grant a peremptory instruction in favor of the defendant, and also refused the following instructions asked by defendant:

"6. There was no imperative duty on the part of the engineer, even if he saw the nurse and child approaching the track, to stop the train, and wait for the woman to cross the track with the child. He had the right to believe, and act on that belief, that she was competent, and saw the moving train, and would wait for it to pass; and, though the jury may believe from the evidence that the train was moving more than six miles an hour, yet, if they believe from the evidence that the woman in charge of the child approached the track from a point where she might have had an unobstructed view of the railroad, and might have known, or did know, of the approach of the train in sufficient time to avoid any injury from it by waiting for it to pass, the plaintiff cannot recover in the cause, and the jury will find for the defendant.

"7. If the jury believe from the evidence that plaintiff's nurse saw the train, and attempted to cross in front of it, or neglected to look out for it, when it could have been seen by her for a distance of four hundred feet from the place where the child was struck, she was guilty of contributory negligence, and her negligence is imputable to the plaintiff, the father of the child, and they will find for the defendant.

"8. At street crossings, while the rights of the public and a railroad company are concurrent, the railroad company has the right of way, and the right to a clear track for the passage of its trains, and, when a person knowingly about to cross the track at a street crossing, approaches it from a point where he or she may have an unobstructed view of the railroad, and knew of the approach of a train in sufficient time to clearly avoid an injury from it, he or she cannot recover, as a matter of law, although the company may have been negligent in performing a statutory requirement, or otherwise."

Exceptions were reserved to the action of the court in refusing these instructions. There were a verdict and judgment in favor of plaintiff for $ 2, 250, and the defendant appealed.

Affirmed. Suggestion of error overruled.

Nugent & Mc Willie, for the appellant.

First, were the acts and conduct of the nurse such as to constitute contributory negligence; and, second, considering this negligence of the nurse, ought it to be imputed to the father of the child who is here suing for damages because of its being killed. In treating these questions. we assume that the train was going more than six miles an hour. Contributory negligence is the want of ordinary care to avoid injury from the act of another, and when one has failed to use such care, he is denied the right to recover, because the law will not undertake to apportion the blame between the wrongdoers. Railroad Co. v. McGowan, 62 Miss. 682. This was adjudged to be the law in a case where the code section was invoked against the railroad company. Section 3546 of the code of 1892 does not deprive the railroad company of this defense. Crawley v. Railroad Co., 70 Miss. 340; Railroad Co. v. Stroud, 64 Ib., 784; Railroad Co. v. McGowan, 62 Ib., 682.

In this case the facts establish the contributory negligence of the nurse under the decisions of this court. Jobe v. Railroad Co., 71 Miss. 740; Crawley v. Railroad Co., supra; Railroad Co. v. Lee, 71 Miss. 895. An apt illustration can be found in the case of Sherry v. Railroad Co., 104 N.Y. 652. See, also, Norman v. Railroad Co., 111 N.C. 236. It is difficult to conceive of a case in which one could have been more negligent, and the bare statement of the facts is sufficient. It may be true that the nurse was alarmed by the surging crowd, and confused to a degree, but this cannot alter the question. She was negligent in undertaking to cross while the train was, to her knowledge, approaching. The truth is, she stopped on the track to look at the bears, and, being apprehensive that they were loose, stood still near the southern rail awaiting developments, and lost sight of the train she had seen.

But it is insisted on behalf of appellee that the negligence of the nurse cannot be imputed to the father, and White v. Railroad Co., 72 Miss. 12, is relied on as authority for the position. It is claimed that, because the child, had she not been killed, could or might have brought the suit, the father stands in her shoes, and may recover also. The case at bar is distinguished from the one cited, by the fact that here the death was instantaneous. In Railroad Co. v. Cook, 63 Miss. 38, it was said that the parent may sustain an action for injuries resulting in death for the time between the injury and death, and from the nature of the question there presented it impliedly follows that there can be no recovery by the parent where death is instantaneous, and there is no such intervening period. Section 663 of the code of 1892 is a precise rescript of § 1510 of the code of 1880 then in force. See, also, Meyer v. King, 72 Miss. 1.

The nurse, who lived north of the scene of the injury, took the two small children, leading one and holding the other in her arms, and went along the street and over the crossing, to look at the bears south of the railroad, and around which a crowd had assembled, while the train was approaching. No better demonstration of incompetency could be given. She stood in loco parentis for the time, and the question must be considered from the standpoint of the legal presence of the appellee. Had he, and not the nurse, led the child in front of the locomotive, no one could or would...