Combs v. Mobile & O.R. Co.

• Decision Date: 27 April 1908
• Docket Number: 12,938
• Citation: 92 Miss. 532,46 So. 168
• Parties: VIRGINIA COMBS ET AL. v. MOBILE & OHIO RAILROAD COMPANY
• Court: Mississippi Supreme Court

46 So. 168

92 Miss. 532

VIRGINIA COMBS ET AL. v. MOBILE & OHIO RAILROAD COMPANY

No. 12,938

Supreme Court of Mississippi

April 27, 1908

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Mrs Combs and others, appellants, were plaintiffs in the court below; the railroad company, appellee, was defendant there. From a judgment in defendant's favor plaintiffs appealed to the supreme court.

The suit was for the alleged wrongful killing of one Jennings Combs, a son of Mrs. Combs and brother of the other appellants. After all the testimony was in, the court gave a peremptory instruction in favor of the appellee railroad company. It appeared that Jennings Combs was an employe of the St. Louis & San Francisco Railroad Company as flagman on a freight train; the latter company had an agreement with the Mobile & Ohio Railroad Company, defendant, to run its trains of ears over the track of defendant between Meridian and Tupelo; on the 19th day of August, 1906, deceased left Meridian on one of the St. Louis & San Francisco trains going north toward Tupelo, and had reached Shuqulak, a point some fifty miles north of Meridian, when the train stopped on the main line because of some trouble with the engine; it was about dark, and deceased was instructed to go back and flag a freight train of the defendant following the St. Louis & San Francisco train, and about due; deceased took red and white lights and proceeded to the rear end of his train, and thence went down the track about a quarter of a mile, and stopped both lamps burning and in plain view; the men in charge of the St. Louis & San Francisco train moved it to the depot on the side track in order to let the defendant's train pass, and whistled to call in Combs, the flagman; the deceased was seen to turn in the middle of the track as though starting back to his train in answer to the call, but in a few minutes it was apparent that he had stopped and the engineer of his train thereupon repeated the call, and again Combs was seen to be moving toward his train; the lights Combs carried were plainly seen and defendant's train was heard and seen coming, apparently paying no attention to the lights of Combs or to torpedoes which he had placed on the track; the conductor on the St. Louis & San Francisco train displayed a lighted fuse on the rear of his caboose, and defendant's train then whistled, answering the signal and began to slow up, and came to a stop. The dead body of Combs and two fuses were found several hundred yards below the point where defendant's train stopped. There were no witnesses to the killing; the engineer on the defendant's train did not see either the deceased or his signals and did not know the train had run over and killed deceased until the conductor on the St. Louis & San Francisco train asked him if he had seen anything of the flagman, when he went to the engine to examine it, and found part of decedent's body in the machinery of the engine. Just south of where deceased was seen last, there was a cut four or five feet deep and a curve in the track. On the engine of the defendant there was an electric headlight, which lighted the track for a long distance in front of it. The plaintiffs endeavored to prove by witness Chambers, who is an experienced railroad man, and who had made observations from the cab of an engine, that the obstructions were not such as to prevent the engineer from seeing Combs on the track at the place where he was struck by the engine. The court declined to permit this proof to be made.

Counsel for appellee contended that Code 1906, § 1985, did not apply in this case, since the killing occurred prior to October 1, 1906, when that code went into effect and that Code 1892, § 1808, would govern. The two sections are identical, except that the last sentence of section 1985 which is italicized, appears for the first time in the Code of 1906. Section 1985 is as follows: "1985. (1808.) Injury to Persons or Property by Railroads Prima Facie Evidence of Want of Skill, etc.--In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to passengers and employes of railroad companies."

Reversed and remanded.

W. N. Ethridge and Amis & Dunn, for appellants.

There are two facts which the circumstances of this case establish.

First. That the deceased was killed by the running locomotive of the defendant railroad company.

Second. That no person saw the killing, and that there was no eye witness to the tragedy.

Code 1906, § 1985, provides that in all cases against railroad companies, for damages done to persons or property proof of injury inflicted by the running of the locomotive or ears of such company shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company, in reference to such injury. The court below, while recognizing the force of the statute, took the view that the testimony in the case overcame the presumption of the statute, and that, looking to all of the testimony, it appeared that the railroad company was not negligent in the operation of its locomotive and cars, and, therefore, the plaintiff could not recover. We think the court was wrong in taking this view of the case. It should be borne in mind that no witness undertook to say what the deceased was doing at the time he was struck by the engine. One witness testified that he had gone back to signal a train of defendant, then presently due to arrive at the scene of the accident; that he went on this errand in the performance of his duties as a flagman on the train on which he was employed. That just before the train which killed him came into sight, the witness saw the lights from lanterns which he supposed were in the hands of the deceased, on the track at or about the place where the deceased was struck; that witness saw these lights move as though the deceased turned around with the lanterns in his hands. There was some testimony to the effect that a burned fusee was found near the place at which the deceased was struck and killed, and the engineer in...