Dickerson v. Illinois Cent. R. Co.

• Decision Date: 05 November 1962
• Docket Number: No. 42411,42411
• Citation: 244 Miss. 733,145 So.2d 913
• Parties: Mrs. Faye Fortenberry DICKERSON et al. v. ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, et al.
• Court: Mississippi Supreme Court

Page 913

145 So.2d 913

244 Miss. 733

Mrs. Faye Fortenberry DICKERSON et al. v. ILLINOIS CENTRAL RAILROAD COMPANY, a Corporation, et al.

No. 42411.

Supreme Court of Mississippi.

Nov. 5, 1962.

Pierce & Waller, Jackson, Chatwin M. Jackson, Jr., Kosciusko, for appellants.

Odom, Odom & Pittman, Greenwood, J. H. Wright, W. F. Cerne, John W. Freels, Chicago, Ill., for appellee.

KYLE, Justice.

This case is before us on appeal by Mrs. Faye Fortenberry Dickerson, surviving widow, and Floyd Dickerson and Theresa Dickerson, minor children of Lloyd Delmar Dickerson, deceased, complainants in the court below, from a decree of the Chancery Court of Carroll County dismissing, after a hearing upon its merits, the bill of complaint filed by the appellants against the Illinois Central Railroad Company, a nonresident corporation, H. Bowen, locomotive engineer, and H. B. Caldwell, Jr., a resident agent of the railroad company, as defendants, for the recovery of damages under the Mississippi wrongful death statute for the death of Lloyd Delmar Dickerson, who was struck and killed by the running of one of the corporate defendant's north-bound passenger trains, known as the Panama Limited, on August 13, 1960, at a point on or near a railroad crossing known as Harper's Crossing, about two and one-half miles north of Crystal Springs, in Copiah County, Mississippi.

The complainants filed their bill of complaint on March 10, 1961. The complainants alleged in their bill that the deceased was struck and killed by the defendant railroad company's train on the date and at the point on the defendants' railroad track mentioned above as a direct and proximate result of the negligence of the defendant railroad company's engineer, H. Bowen, and other servants and employees of the railroad company in charge of the train. The complainants alleged that the defendant railroad company's tracks, at the point where Dickerson was killed and immediately south thereof, were straight for a distance of more than a mile; that beginning at a point about 200 feet south of Harper's Crossing the defendant railroad company's tracks ran southwardly through a deep cut for a distance of approximately one mile, which tended to mute the noise caused by the running of the defendant railroad company's train, and that fact was known to the defendant railroad company and its employees in charge of its train, or should have been known to them by the exercise of reasonable care; that under the circumstances thus stated it became and was the duty of the defendant railroad company and its engineer to give warning of the approach of the train by causing the bell on the locomotive pulling the train to be rung and the whistle or horn thereon to be blown at least 300 yards before reaching Harper's Crossing, as required by Section 7777, Mississippi Code of 1942, Rec.; that the defendant railroad company and its engineer failed to give such warning; and that the failure to give such warning constituted negligence on the part of the defendant railroad company and its engineer.

The complainants further alleged that the servants and employees of the defendant railroad company in charge of the train, including the defendant engineer, had a clear and unobstructed view of the railroad tracks and right of way along said tracks for a great distance, both south and north of the crossing; that on the occasion complained of the servants and employees of the defendant railroad company in charge of the defendant railroad company's train, including the defendant engineer, saw, or by the exercise of reasonable care should have seen, the decedent on the track of the defendant railroad company, and on or about Harper's Crossing, and saw, or by the exercise of reasonable care should have seen, the decedent's position of peril on the railroad track in front of the oncoming fast-moving train; but, notwithstanding these facts, the servants and employees of the defendant railroad company negligently failed to sound any warning of the approach of the train and negligently failed to apply the brakes to the engine and cars so as to reduce the speed of said train or stop the train before striking the decedent; and that the failure to sound such warning and apply the brakes constituted negligence on the part of the defendant railroad company and its engineer. The complainants also alleged that the defendant railroad company was guilty of negligence in employing and placing in charge of the train as the engineer thereof the said H. Bowen, who was a man of advanced age and physically incompetent to operate the train with reasonable safety to the traveling public; and that the defendant H. Bowen was himself personally negligent in operating the train.

The defendants in their answer denied that they were guilty of the several acts of negligence alleged in the complainants' bill of complaint, and denied that the accident happened at a public crossing; and the defendants alleged that the train was being operated with due care and that the death of the decedent was caused solely by his own gross negligence. By way of affirmative matters of defense the defendants averred that the complainants' decedent was a trespasser upon the right of way of the defendant railroad company at the time of his injury and death; that he was in an intoxicated condition, and while in such intoxicated condition was lying prone and motionless on the railroad right of way with his head on or near a crosstie, and at a place on the right of way apart from any crossing. The defendants further averred that the defendant's train was being operated in a careful and prudent manner by the crew thereof at a lawful and reasonable rate of speed not in excess of 70 miles an hour; that the headlight on the locomotive was burning and proper warnings were given by the engineer of the approaching of the train to Harper's Crossing; that after the discovery of the complainants' decedent by the train crew the train crew exercised proper and due care to prevent the striking of the complainants' decedent by the train, but was powerless to prevent the train from striking the complainants' decedent; and that at no time was the engineer or other members of the train crew guilty of any negligence.

The cause was heard upon its merits at the regular October 1961 term of the chancery court, and at the conclusion of the hearing, the chancellor dictated into the record his findings of fact and his conclusions of law.

The chancellor found that the deceased was a trespasser on the railroad right of way at the time he was struck and killed, and that the deceased, when first seen by the engineer on the railroad right of way, was drunk to the extent that he was unconscious and was lying just east of the crossties about 10 or 15 feet south of Harper's Crossing. The chancellor found that Harper's Crossing was a private crossing serving three families to the west and sometimes, but very seldom, used by other people. The chancellor found that the Panama Limited was running at a rate of speed of 70 miles per hour as it proceeded northwardly toward Harper's Crossing; that the engineer was alert, competent and well prepared to run the train; that the engineer began blowing the whistle of the diesel engine and ringing the bell slightly over 900 feet south of Harper's Crossing; and that the engineer continued to blow the whistle and ring the bell until he had passed over the crossing. The chancellor found that the engineer was keeping a lookout; that he saw what he thought was a paper where the deceased was lying, and when about 240 feet south of the point where the deceased was lying, the engineer observed that what he thought was a paper was a human being; and that this was the first time under the facts in the case that the engineer could have seen the deceased placed as he was on the railroad right of way. The chancellor found that it was impossible for the engineer, even though he had applied the emergency brakes to have stopped the train until after the train had passed the point where the deceased was lying and had passed Harper's Crossing. The chancellor found that the engineer used sound judgment in applying the service brakes only, and that he did everything that he could do to avoid the accident.

The chancellor was of the opinion that the reasonable inference to be drawn from the evidence was that the noise made by the engineer in giving the alarm and the running of the train caused the deceased to arouse from his drunken condition and straighten up to the extent that the side of the train hit him and carried him north 85 to 100 feet.

The chancellor was of the opinion that the bill of complaint should be dismissed, and a decree was entered accordingly.

The appellants have assigned and argued four points as grounds for reversal of the decree of the lower court, as follows: (1) That the chancellor erred in finding that the railroad company sufficiently explained the killing of the deceased to warrant a decree in its favor; (2) that the chancellor erred in finding as a fact that the deceased was drunk to the extent that he was unconscious and lying just east of the railroad crossties, about 10 or 15 feet south of Harper's Crossing; (3) that the chancellor erred in finding as a fact that the reasonable inference to be drawn from the evidence offered on behalf of the defendants was that the noise made by the engineer in giving the alarm and the running of the train caused the deceased to arouse from his drunken condition and straighten up to the extent that the side of the train hit him and carried him north 85 to 100 feet; and (4) that the chancellor's findings of facts in the case are contrary to the law and against the overwhelming weight of the evidence.

In view of the nature of the points assigned and argued as grounds for reversal of the decree of the lower court it is necessary that we give a brief summary of the testimony of the witnesses.

...