Clarke v. Illinois Cent. R. Co.

• Decision Date: 03 February 1923
• Docket Number: 3918.
• Citation: 286 F. 915
• Parties: CLARKE v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

286 F. 915

CLARKE v. ILLINOIS CENT. R. CO.

No. 3918.

United States Court of Appeals, Fifth Circuit.

February 3, 1923

Rehearing Denied March 7, 1923.

Garland Q. Whitfield, of Jackson, Miss. (J. W. Cassedy, of Brookhaven, Miss., and Julian P. Alexander, of Jackson Miss., on the brief), for plaintiff in error.

A. J McLaurin and Geo. W. May, both of Jackson, Miss. (May Sanders & McLaurin, of Jackson, Miss., on the brief), for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING Circuit Judge.

Plaintiff in error, plaintiff in the court below, brought suit against the Illinois Central Railroad Company, hereinafter styled defendant, to recover for personal injuries alleged to have been inflicted by said defendant.

George Clarke was a boy about 13 years of age, a member of a Boy Scout troop, and on the night when injured was on his way to a meeting of the troop, who were going to a lecture. While playing with a companion near where South Gallatin street crosses the defendant's railroad tracks in the city of Jackson, Miss., he heard a train of defendant approaching from the south. He and his companion undertook to board said train as it passed Gallatin street. The companion first boarded the train, and the plaintiff almost immediately thereafter did the same thing. The train was a fruit freight train and was running at the rate of speed of about 15 miles per hour. Young Clarke caught a handhold near the rear of the train, putting his foot in the stirrup. While riding on the train in this position, his body collided with a switch stand, he was struck from the train, and his foot run over, causing its amputation.

A statute of the state of Mississippi (Hemingway's Code, Sec. 6667) prohibits the running of trains through a city at a rate of speed exceeding 6 miles per hour, subject to certain rights in the Railroad Commission of said state to except parts of cities. However, no such exception had been made at the place of this accident. Another statute (Hemingway's Code, Sec. 1081) makes it a misdemeanor for any person not a passenger or employee to climb upon, jump, or step upon, or in any way attach himself to, any locomotive, train, or car, while in motion on a railroad track or siding.

The evidence of the plaintiff tended to support the allegations of the declaration, and he further testified that, had the train not been running at a rate of speed exceeding 6 miles per hour, he could have jumped therefrom, and would not have been struck therefrom by the switch stand with such violence as to cause his leg to get under the train and himself to be so injured.

At the conclusion of the evidence, the court, on motion of the defendant, directed a verdict in favor of the defendant railroad company.

This is assigned as error, upon the ground that the excessive speed of the train was a proximate cause of the injury, and, even if the action of the plaintiff in...