Dyche v. Vicksburg, S. & P.R. Co.

• Decision Date: 25 November 1901
• Citation: 79 Miss. 361,30 So. 711
• Parties: CLYDE DYCHE v. VICKSBURG, SHREVEPORT & PACIFIC RAILROAD COMPANY
• Court: Mississippi Supreme Court

30 So. 711

79 Miss. 361

CLYDE DYCHE v. VICKSBURG, SHREVEPORT & PACIFIC RAILROAD COMPANY

Supreme Court of Mississippi

November 25, 1901

FROM the circuit court of Warren county. HON. PATRICK HENRY Judge.

Dyche the appellant, was the plaintiff in the court below; the railroad company, appellee, was defendant there. Appellant an infant, sued to recover damages for the alleged wrongful death of her father, Kirk P. Dyche, who was dangerously injured by being run over by the cars of appellee, at Delta Louisiana (an unincorporated town), in 1898. On the night of the accident Dyche, the decedent, left Vicksburg on his journey to some place in Louisiana on the Vicksburg Shreveport & Pacific Railroad. He tried, but failed, to obtain consent to ride upon a freight train which left Delta shortly after dark, and then went into the caboose, which was upon a track awaiting the making up of a train to which it was to be attached. The caboose and another car were standing upon the track, and were not at the time connected with the engine, which was engaged, some distance away, switching cars. Deceased got off the caboose and went behind it to answer a call of nature. While thus engaged, a kicking switch was made, by which several cars were rolled down the track and struck the caboose, which ran over deceased and across his leg, crushing it above the ankle and below the knee. Deceased was taken from under the car, and messengers were sent to look for a doctor, but none was found. It was learned that all mode of carrying the injured man across the Mississippi river to Vicksburg had been suspended for the night, and he was put on the freight train, then about to leave, and carried to Tallulah, a station eighteen miles west of Delta, where a physician, one Dr. Herring, who had been employed by the railroad company to do surgical work for it, had been telegraphed to by the company to take charge of the injured man upon arrival of the train at that place. When the freight train on which deceased was being carried reached Tallulah, at 9: 30 P. M., deceased was met by Dr. Herring, who gave him some morphine and bandaged his leg, and stayed with him until about 2 o'clock in the morning, when deceased was left with a negro boy, who had been engaged to stay with him. Upon the suggestion of Dr. Herring, deceased was carried to Vicksburg the next day, on a freight train which reached Delta (about three miles from Vicksburg) about 7 o'clock A. M., to be placed in the hospital. When Delta was reached, deceased was carried down to the transfer boat, and, according to the testimony of the yard master at Delta, was ferried back and forth two or more times before being landed and sent to the hospital. He was finally taken to the hospital about 3 o'clock in the afternoon, where an operation was performed about 6 or 7 o'clock. On the following day Dyche died. The physician at the hospital who amputated the leg of Dyche testified, at the trial of the case, that the delay of the operation lessened the chance of life, and that the operation should have been performed immediately after the injury. At the trial of the case in the court below, a peremptory instruction was given for defendant, and a verdict and judgment followed accordingly. From this judgment plaintiff appealed to the supreme court.

Reversed and remanded.

Magruder, Bryson & Dabney and Duncan Martin, for appellant.

Dyche may have been a stranger and a trespasser, but when the railroad company undertook the task of ministering to him in his condition, there devolved upon it the duties of humanity. We think the law in this case is settled so far as the liability of the company is concerned for its conduct by the doctrine laid down in many cases. Cincinnati, etc., R. R. Co. v. Cooper, 16 Am. St. Rep., 337; Allison v. Chicago, etc., Ry. Co., 42 Iowa 274; Northern Central R. R. Co. v. State, 29 Md. 420.

If death was hastened by the negligence of the railroad company, it is not guiltless. Louisville, etc., R. R. Co. v. Jones, 82 Ala. 376; Connolly v. Crescent City R. R. Co., 41 La. Am., 57; Weightman v. Louisville, etc., R. R. Co., 70 Miss. 563.

There was neglect on the part of the company in taking the injured man to Tallulah, instead of bringing him to Vicksburg, and in the manner of same. It was guilty of negligence of the grossest kind in its treatment of Dyche at Tallulah and upon the transfer boat when he was being brought back. Whether this negligence is established conclusively by the evidence is not the question to be considered here. If the evidence even tended to establish such negligence, the granting of the peremptory instruction was error. Lowenstein v. Powell, 68 Miss. 73.

There is a material conflict in the evidence upon the point of Dr. Herring's competency, upon the question of how long the injured man was allowed to remain upon the transfer boat, and as to when the hospital was notified and the ambulance requested to be sent. This being the case, it was improper to give the peremptory instruction. Carson v. Leathers, 57 Miss. 650; Richardson v. Toliver, 71 Miss. 966; Thrasher v. Gillespie, 52 Miss. 840; Cantrell v. Railroad Co., 69 Miss. 435; Timberlake v. Compress Co., 72 Miss. 323.

McWillie & Thompson, for appellee.

There seems to be no room for serious contention about the nonliability of the railroad company for the infliction of the injuries. The decedent was a trespasser pure and simple. He was a trespasser in the company's yard, a trespasser in its car, and a trespasser when under its cars at the time he was run over. There is not a particle of evidence showing, or tending to show, that any employee of the company knew he was under the cars, or that any one of them willfully or wantonly did anything which caused his injury.

The carrying of the wounded man to Tallulah, under the circumstances detailed in evidence, could not and did not impose liability. Search was promptly made for Dr Dangerfield, the only resident physician at Delta; he could not be found; all means of crossing the river and carrying the unfortunate man to Vicksburg were beyond reach for the time being. It was not improperly concluded that the best thing to do was to carry Mr. Dyche to Tallulah, eighteen miles distant, and for which place the train was ready to start, and place him under the care of Dr. Herring. There is no averment in the declaration that the railroad was...