Bufkin v. Louisville & N. R. Co

Decision Date09 November 1931
Docket Number29567
Citation137 So. 517,161 Miss. 594
PartiesBUFKIN v. LOUISVILLE & N. R. CO
CourtMississippi Supreme Court

Division B

1 RAILROADS.

To warrant recovery against railroad for excessive speed, such speed must be proximate cause of injury (Code 1930, section 6130).

2 RAILROADS. Excessive speed of train held not proximate cause of

injury to bystander on station platform, who was knocked against train by passenger in attempt to board train passenger's act being independent, intervening agency (Code 1930, section 6130).

The declaration alleged that the train in pulling out of the depot was running at a speed of about twelve or fifteen miles an hour, in violation of Code 1930, section 6130, and that, as the rear coach of the train was passing by the ticket window, a passenger, in an effort to catch the train, ran against plaintiff, who was standing on the platform, causing him to fall against the train, and that the train struck plaintiff, and knocked him down and caught his leg between depot platform and part of train.

3. NEGLIGENCE.

Consecutive wrongs done by independent agents cannot be conjoined to enlarge responsibility of one of them.

4. NEGLIGENCE.

Wrongdoer is not responsible for acts of others acting independently, though former's act may be occasion for acts of others.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by Howard Bufkin, a minor, by next friend, N. J. Bufkin, against the Louisville & Nashville Railroad Company. From a judgment dismissing the cause, plaintiff appeals. Affirmed.

Affirmed.

Mize, Mize & Thompson, of Gulfport, for appellant.

The law is well settled that a person having business at a depot of a railroad company is an invitee and the railroad company owes such person the duty to exercise reasonable care for the safety of that person.

4 R. C. L. 1053; City of Seattle v. Jenkin, 10 Ann. Cas. 159; Hill, Admrs., v. L. & N. R. R., 3 L. R. A. (N. S.) 432; Ark. & L. R. Co. v. Sain, 22 L. R. A. (N. S.) 910.

It is a violation of the statute to run a train at a greater rate of speed than six miles per hour at the place where this injury occurred.

Sec. 6130, Code 1930.

It is a question for the jury to say whether or not appellant would have been injured if the train had been operating at a lawful rate of speed.

Garnett v. L. & N. R. R., 129 Miss. 795, 93 So. 241; Brinkley v. Southern Ry. Co., 113 Miss. 367; Jones v. Ill. Cent. R. Co., 75 Miss. 970; Kendall v. Davis, 129 Miss. 30, 91 So. 701; Stevens v. Y. & M. V. Ry. Co., 81 Miss. 195; A. & V. Ry. Co. v. Carter, 77 Miss. 511.

The negligence of the passenger is not an intervening cause but is simply a concurring cause of negligence for which either one or both are responsible.

Gulf & Ship Island R. Co. v. Carlson, 102 So. 168; Cocora v. Vicksburg Light & Traction Co., 89 So. 257.

The last negligence that caused plaintiff's injury was the negligence of the railroad company in operating its train at fifteen miles per hour and if it could be said that there was any intervening cause, then it was the negligence of the railroad company that intervened after the passenger had run against plaintiff, and certainly the admitted negligence of the railroad company was one of the contributing causes of the plaintiff's injury.

Cumberland Tel. Co. et al. v. Cosnahan, 105 Miss. 615.

Smith & Johnson, of Mobile, Ala., for appellee.

The speed of the defendant's train is shown by the declaration not to have been the proximate cause of the plaintiff's injuries, but the intervening, independent act of the person who knocked the plaintiff into the train was the sole proximate cause, and such negligence cannot be conjoined to negligence of another to enlarge responsibility of the railroad company.

Louisville & Nashville Railroad Co. v. Daniels, 135 Miss. 33, 99 So. 434; Louisville & Nashville R. R. Co. v. Jones, 134 Miss. 53, 98 So. 230; Howell v. Illinois Cent. R. R. Co., 75 Miss. 242, 21 So. 746; Ozen v. Sperier, 117 So. 117; Garrett v. Louisville & Nashville R. R. Co., 196 Ala. 52, 71 So. 685.

OPINION

Anderson, J.

Appellant brought this action against appellee in the circuit court of Harrison county to recover damages for a personal injury received by appellant through the alleged negligence of appellee.

Appellee's demurrer to the declaration was sustained, on the ground that the declaration set out no cause of action under the law. Appellant declining leave to amend the declaration, judgment final was entered, dismissing the cause, and from that judgment appellant prosecutes this appeal.

The declaration sets out the ground of appellee's liability in this language:

"Plaintiff avers that on said date one of the passenger trains of the defendant had pulled into the depot, within the city limits of the city of Gulfport, and, as it was pulling out, it was running at a speed of about twelve or fifteen miles per hour, alongside of the depot in said municipal limits, and in violation of the laws of the state of Mississippi (the six-mile statute), and as the rear coach of said passenger train was passing by the ticket window, at a speed, as aforesaid, of about fifteen miles per hour, one of the passengers of the defendant company, in an effort to try and catch said train being operated at said unlawful speed, ran against plaintiff, causing him to fall against said train, and said train struck plaintiff, and knocked him down and caught his leg between the platform of the depot and some part of the train, and broke his leg.

"Plaintiff avers that it was negligence on the part of the defendant to operate its trains at a greater rate of speed than six miles per hour, and that said negligence of the defendant proximately contributed to plaintiff's injury.

"Plaintiff avers that if said train had been running at six miles per hour, as provided by law, that he would not have been thrown to the pavement or floor of the platform and would have had time to extricate himself from a place of danger and he would not have been so badly hurt and that said negligence of the defendant was the proximate cause of his injury."

It is evident that under the allegations of the declaration appellant would not have been injured except for the independent action of the passenger in running against him, and knocking him against the moving train. Appellant was entirely out of danger up to that time-- he was out of the sweep of the moving train.

Under section 6130, Code of 1930, fixing the maximum speed limit of trains in municipalities at six miles an hour, and providing that a railroad company violating the statute shall be liable for any damage or injury which may be sustained by any one from the locomotive or cars running at a greater rate of speed than six miles an hour, such liability is not an absolute one. The excessive speed must be the proximate cause of the injury. Clisby v. M. & O. R. Co., 78 Miss 937, 29 So. 913; Louisville, N. O. & T. R. Co. v. Caster (Miss.), 5 So. 388; Illinois Cent. R. Co. v. Watson (Miss.), 39 So. 69; ...

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