Brown v. Southern R. R. Co. in Mississippi

• Decision Date: 20 January 1913
• Citation: 103 Miss. 315,60 So. 326
• Court: Mississippi Supreme Court
• Parties: BROWN ET AL. v. SOUTHERN R. R. CO. IN MISSISSIPPI

60 So. 326

103 Miss. 315

BROWN ET AL. v. SOUTHERN R. R. CO. IN MISSISSIPPI

Supreme Court of Mississippi

January 20, 1913

October 1912

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

Suit by J. M. Brown and others against the Southern Railway Company in Mississippi. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Dunn &amp Thompson, for appellants.

The deceased, a woman sixty-two years old, approached the railroad from the south on foot, traveling along the street of the village of Stewart, the most frequented street and principal thoroughfare of the village. At the same time appellee's passenger train going west, which arrives at Stewart between nine and ten o'clock in the morning was rapidly approaching the crossing, the approach of which, so far as can be judged from the testimony in the case, being unknown to the unfortunate old lady.

Let it be borne in mind that she could be seen up the track from the east at least three hundred yards before she got upon the dump or embankment and that after getting upon the same which was about sixty feet wide, the railroad track being about the center, she could have been seen from the east at least half a mile.

As she about reached the north rail of the track she was struck by the locomotive and her body thrown forty-five feet from the track.

The testimony further shows (from the statement of eyewitnesses) that at the time of the injury the train was running at a high rate of speed--much higher than it usually ran along there, some of the witnesses putting the speed as high as twenty-five miles an hour. And the testimony further shows that the engineer gave no signal or warning of any kind whatever, as required by law, of his train's approach of the crossing. No bell was rung, no whistle sounded. The train approached the crossing in utter disregard of law, and running through an incorporated village at a rate of speed prohibited by law, having entered the corporate limits a half mile east of the crossing.

That the train was moving at a high rate of speed is evidenced by the fact that the old lady's body was thrown a great distance from the track--the distance of forty-five feet.

We submit that the facts show that this train was not only negligently run, but was operated in utter disregard of the life, limbs, safety and rights of every man, woman and child who might be approaching its tracks at that time along said street as they had the right to do. On these facts the trial judge took the case from the jury. We submit that on the facts of the case there was a question for the jury. We thnki it no answer to say that the action of his honor is sustainable on the ground of contributory negligence on the part of the deceased. Within the Act of the legislature of 1910, chapter 135, providing that all questions of negligence and contributory negligence shall be for the jury, the court erred. It should have submitted the question of the causa causans of the injury to the jury. See Natchez & S. R. Co. v. Crawford, 55 So. 596. Also the Fuller case reported in 57 So. recently decided by this court.

We submit that the judgment should be reversed.

Catchings & Catchings, for appellant.

Appellants relied upon the case of Fuller v. I. C. R. R. Co., decided by this court, December 18, 1911. We will make some use of what was said arguendo by the court in that case, but for the present it is sufficient to say that the case at bar does not come within the purview of the case, by the express declaration of the court itself in the concluding part of its opinion. The case then before the court was that of a man attempting to drive across a railway track in a wagon. The court expressly distinguished that case from that of a pedestrian who is injured by a railway saying:

"It must be observed that this is not the case of a pedestrian who approaches or who is on the track. In such cases the engineer has the right ordinarily to act upon the assumption that the party will get out of danger. Mr. Fuller was in a wagon, and the engineer could have seen that he was going to cross the track, and could only with difficulty extricate himself from his peril us position."

The distinction is obvious, and has been recognized by this court in many cases. The reason for the distinction is that the cases are very rare in which a pedestrian could not by a very simple effort remove himself from all danger of being struck by an approaching or passing train. In the case of one attempting to cross with the team and wagon we have different circumstances entirely. It is necessarily difficult in most cases for one attempting to cross with a team to get out of the way unless he has considerable time within which to do so. On the other hand, as the track of a railroad is only about five feet wide, a person walking, by one or two steps can remove himself from the track and so from danger. As far back as Strong v. A. & N. R. Co., 3 So. 465, it was held that where a woman came upon the track of a railroad company and did not look to see if it was clear, but continued to walk along the track for some distance, arriving at a trestle about one hundred feet long, started to cross it, and after she had proceeded some distance, saw an engine, when she began to run, and was struck just as she got across the trestle, she was guilty of such gross negligence and of such flagrant disregard of her personal safety that she could not recover, although the train which injured her was passing through a village at a greater rate of speed than six miles an hour. The court said, however, that notwithstanding her gross negligence and her flagrant disregard of her personal safety, if the engineer or employee in charge of the locomotive saw her on the trestle where she could not readily leave the track with safety, they were bound to stop the locomotive, or to do all they could to stop it, to avoid the injury. The court then added that there was no evidence in the record which showed that the engineer of the company saw the woman in her perilous position on the trestle, or from which it could be fairly inferred that she was seen in that perilous position before she was struck, and it was said that under these circumstances the court properly instructed the jury to find for the railway company.

In the case of Mobile & Ohio R. Co. v, Stroud, 64 Miss. 792, this court said that a man who voluntarily gets on a railroad track sixty feet in front of a train moving towards him at a greater rate of speed than six miles an hour, at a point where there is nothing to obstruct the view or prevent him from seeing the train or leaving the track after he is on it, must take the consequences of his own negligence and folly.

Applying this rule to the case at bar, we say that even if the employees of the appellee saw Mrs. Brown...