Billingsly v. Illinois Cent. R. R. Co.

• Decision Date: 18 December 1911
• Docket Number: 15,368
• Citation: 100 Miss. 612,56 So. 790
• Court: Mississippi Supreme Court
• Parties: MRS. DORA BILLINGSLEY v. ILLINOIS CENTRAL R. R. Co

56 So. 790

100 Miss. 612

MRS. DORA BILLINGSLEY v. ILLINOIS CENTRAL R. R. Co

No. 15,368

Supreme Court of Mississippi

December 18, 1911

APPEAL from the circuit court of Attala county, HON. G. A. MCLEAN Judge.

Suit by Mrs. Dora Billingsley against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are stated in the opinion of the court.

Affirmed.

Watkins & Watkins, for appellant.

We submit that the question of whether the negligent failure of the engineer to whistle and ring the bell as provided by the law for just such cases as this, was the proximate cause of the injury, is one which should have been submitted to the jury for their determination, and should not have been arbitrarily determined by the court; and it was for the jury to say whether under all the circumstances and surrounding conditions the giving of the warning signals on approaching the crossing would not have frightened the child and caused it to change its position before the nearness of the approaching train had paralized it with fear. The child was standing on the track, and whatever cause it might have taken to get away from the sounds that frightened it, it would have escaped from the region of danger, and the plaintiff would not have been injured, as the injury is shown to have occurred in the instant taken by her in grasping her childs uplifted hands and swinging it out of the region of danger and off of the track where it was standing.

When there is a negligent failure of the defendant railroad company to perform a duty required by law to be performed by it, and an injury occurs which might reasonably not have occurred had the defendant complied with its duty and the law; then it is incumbent on the railroad to show that said omission or negligent failure was not the proximate cause of the injury. At least it is for the jury to say whether the evidence and the circumstances of the case show that the negligence of the defendant proximately caused the injury. Counsel for the appellee realized this and tries to show that this neglect to sound the warning was not the cause of the accident.

Counsel for the appellee says that the failure to give warning is immaterial "as the plaintiff testified that she saw the train coming while on the gallery of her house, and it was the sight of the train itself approaching the crossing where the child was that made her run down to the crossing and go on the track." We submit that counsel is mistaken as to the import of this testimony. What he relies upon as showing that the negligence of the defendant was not the proximate cause of the injury is evidence directly to the contrary and with telling effect. Had the warning been given, the sight of the approaching train would not have been the thing that sent the woman flying to the crossing, but at the sound of the whistle, before ever the train itself came in sight, the mother on her gallery would instantly have seen the child and comprehended its peril. Certainly, the failure to observe the danger of the child a moment sooner caused the injury, and had the whistle been sounded one cannot with reason argue that the mother would have failed to appreciate the child's danger or have waited until the train was in plain view before going to the rescue, for simultaneously with the knowledge of the child's position and the approach of the train, as soon as she was aware that the train was coming she went at her utmost speed to where the infant stood.

We submit, therefore, that counsel for the appellee is not justified by law in saying that the plaintiff had that knowledge which the law intended she should have, because she saw the train approaching. A person crossing the track under ordinary conditions, and seeing the train might under some circumstances be presumed to have had warning, regardless of the neglect of the whistle and bell, but this is a different case. The crossing must be reached and the child saved; a certain number of seconds is necessary; the question then becomes vital, as to whether the plaintiff would not have realized sooner the approach of the train had she been given the warning which she was entitled to have had.

Counsel for the defendant in his brief insists that because the defendant's engineer testifies that when he saw the child he did everything in his power to stop the train before it reached the crossing, the defendant is absolved from liability. We respectfully submit that this is not the test of liability of the defendant. The same argument might be made with equal propriety if the engineer had had his back to the crossing and had been talking with the brakeman who was riding with him in the engine and had not looked out until the engine was upon the crossing. We further submit that it is reasonable to say that the careless and negligent state of mind of the engineer which caused him to pass unseeing by the whistle board a quarter of a mile, above the crossing persisted and caused him to negligently fail in keeping his look out and fail to see the child until too late to stop the train. The testimony of the engineer is that when he saw the child it was too late to stop. The question naturally comes up, Why did he not see it sooner? As a matter of fact he never did stop the train until he had gotten nearly a quarter of a mile below the place, from this it would appear that he had not put on the emergency brake until he was very close to the crossing. The mother saw it before he did according to her testimony; he had an unobstructive view of the track a quarter of a mile above the crossing.

We respectfully submit that the case developed by the evidence is one which should have been presented to the jury, and would respectfully direct the attention of the court to a discussion of the foregoing questions contained in 2 Thompson on Negligence (2nd Ed.), paragraphs 1817 and 1823; also Chi. R. R. Co. v. Logue, 58 Ill. 621, 42 N. E. P 53.

Counsel for the appellee argues at length the subject of the contributory negligence of the mother in not keeping the child in a place of safety, and in not having a fence around her house, and tries to show that this negligence of the mother would prevent recovery in this case. We submit that this question was one to be submitted to the jury. We would call the attention of the court to the discussion of this question in Thompson on Negligence (2nd Ed.), paragraph 1817. In this section the learned author states that even as to trespassing children not on crossing, "In most cases the question whether the parents of the child are negligent in permitting it to escape from them and go on the railroad track will present a question of fact to be answered by the jury in view of all the surrounding circumstances, and not a question of law for the court." And in this case the child was not a trespasser but was on the crossing of a public road.

We respectfully submit that the cases cited by the counsel of appellee in support of this part of his argument without exception, will be found not to apply to the case at bar. A number of them are cases where the child is allowed by the parent to play upon the track of the railroad knowingly. Others will be found to deal with cases in which the child suddenly ran across a busy street and was run over by a street car, the child not having been properly restrained by its guardian. In this case the child was momentarily out of sight of the mother, whose lack of means forced her to do other work about the house than merely to look after the child, and prevented her hiring a nurse to take care of it for her. Without her knowledge or acquiescence in its course it stole away nearly a hundred yards to the crossing of the public road and the railroad where there is no evidence to show that it had ever been before. We respectfully suggest that a careful reading of the authorities cited by opposing counsel does not justify his conclusions, and that the case should be reversed and remanded.

Teat & Niles, for appellant.

The court erred in granting a peremptory instruction to the jury to find for the defendant.

Upon the question of the right of the trial court to grant a peremptory instruction for the defendant, we desire at the outset to submit the following propositions:

1. A peremptory instruction must not be granted unless all of the testimony in the record and a fair inference to be drawn from it, taken together, would not support a verdict for the plaintiff.

2. That question of negligence are for the jury and only in rare instances, should the trial court determine this question.

3. It is fundamental that the court is authorized in instructing a verdict in a case tried by a jury, only where the evidence is such that reasonable minds cannot differ in the conclusions to be drawn from it; and the evidence in this case was such as to demand submission of this issue to the jury. Cross v. I. C. R. R. Co., 110 S.W. 290, 110 S.W. 382; R R. Co. v. Joshlin, 110 S.W. 382; Bell v. Railroad Co., 87 Miss. 234; Stevens v. Ry. Co., 81 Miss. 195; Allen v. R. R. Co., 88 Miss. 26, and authorities mentioned in those opinions; Nesbit v. City of Greenville, 69 Miss. 22; Whitney v. Cook, 53 Miss. 551; 29 Cyc., page 523; Beach on Contributory Negligence, section 14, L. & N. R. R. Co. v. Orr, 26 So. 35; Whitworth v. Shreveport Belt Ry. Co., 112 La. 373, 65 L. R. A. 132, 36 So. 414; Eckert v. Long Island R. R. Co., 43 N.Y. 502; Ninnehan v. Sampson, 126 Mass. 506; Pennsylvania Co. v. Langdendorf, 13 L. R. A. 190; Chicago Terminal Transfer Co. v. Kotosko, 101 Ill.App. 306; Sailor v. Parson, 122 Iowa 681, 64 L. R. A. 544; Mobile, etc. R. R. Co. v. Ridley, 114 Tenn. 727; Anderson v. Telephone Co., 86 Miss. 341; Jones v. I. C. R. R. Co., 75 Miss....