Fuller v. Illinois Cent. Railroad Co.

• Decision Date: 18 December 1911
• Docket Number: 15,175
• Citation: 100 Miss. 705,56 So. 783
• Court: Mississippi Supreme Court
• Parties: E. L. FULLER ET AL. v. ILLINOIS CENTRAL RAILROAD COMPANY

56 So. 783

100 Miss. 705

E. L. FULLER ET AL. v. ILLINOIS CENTRAL RAILROAD COMPANY

No. 15,175

Supreme Court of Mississippi

December 18, 1911

APPEAL from the circuit court of Attala county, HON. G. A. MCLAIN Judge.

Suit by E. L. Fuller et al. against the Illinois Central Railroad Company. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

J. G Smythe, Luckett & Guyton, Teat & Mills, S. L. Dodd and Flowers, Alexander & Whitfield, for appellant.

Counsel for appellee says that this is not a case for the use of section 1985; that there were eyewitnesses and the facts about the occurrence are in evidence. But this is only partly true. We have witnesses who tell what the deceased did but nobody undertakes to say what the men in charge of the train did. Counsel seems to consider that if the deceased was guilty of negligence there could be no recovery, whatever may have been the conduct of the men on the locomotive. But this is not a sound view of the case. Certainly these appellants are in no worse condition than they would have been in if they had proved by eyewitnesses that the deceased was standing in the middle of the track and had been standing there for some minutes when the train arrived. It would be the duty of the railroad company to explain what it did with respect to this occurrence. There has been no explanation here from the railroad company, no attempt whatever to exonerate itself from blame.

Proof of the injury by a running train creates the presumption of liability. The burden is on the defendant then to exonerate itself and this cannot be done by simply calling attention to what the deceased did. His negligence may be a defense or it may not be. Whether it is or not a defense is owing to the degree of guilt on the part of the company's agents and servants. If they were willful or wanton or reckless his contributory negligence is not a defense. The company cannot exonerate itself without showing that its servants were guilty of no wanton or capricious or willful acts. When the locomotive was almost ready to strike the man there were two short blasts blown. This shows that they saw him before they struck him. Whether they saw him before they blew the signal is not made to appear

The court will note that this is not a case where one suddenly dashes onto the track in front of a rapidly moving train. This is no case of that kind. Here we have a man moving slowly in plain view of the man on the engine. He was in plain view for some seventeen or twenty feet. In fact he must have been twenty-five feet or more from the place where he was struck when his horse was first seen by the men on the train. Usually when a horse is moving along with a vehicle there is a human being in the vehicle. When they saw this horse advancing the men on the train should have known that there was possibly a man in the wagon. When they saw the old man sitting up in his wagon approaching the track it was very plain that he was in a position of peril and they should have known from his movements that he was not aware of his perilous position. When they saw him or his horse the men on the train should at once have begun to give signals and to try to check the speed of the train. If they had done this the old man's life would have been saved. As far as this record shows they did absolutely nothing, but relied altogether, as counsel do here, upon the contributory negligence of the old man in the wagon.

We respectfully submit that they have not relieved themselves of the burden imposed by the statute, and that it is a perfectly plain case for the application of that statute. If the men on the train were keeping a lookout, as they should have been they saw him by the time be should have seen the train. In fact they saw his horse before the old man got from behind the stave timber. The men on the train had a much better opportunity to learn of his presence than he had to learn of the approaching train.

When counsel for appellee concedes that the old man was rightfully on the track and that this road had been used for so long a time as to imply a permission on the part of the railroad company to use it and that he was a licensee, we submit that there can be no question as to whether the issue should have been submitted to the jury, because this would mean that the men on the train should have been on the lookout; they should have been expecting that there would be persons on the track at this crossing. In fact in this concession of counsel we are safe in assuming that the men in charge of the locomotive were actually on the lookout at this particular time and saw the old man's horse as it passed from behind the stave timber and saw the old man in his wagon slowly moving upon the track into a position of imminent peril.

C. L. Sivley and Mayes & Longstreet, for appellee.

There is nothing novel or interesting in this case. It presents no new question, either of fact or law. The deceased was driving a loaded wagon along a private road near the town of Koscuisko. He approached a private crossing at a place where the road for about six hundred feet was clear and straight. His view would have been entirely unobstructed except for the fact that on one side of the road there was a pile of cross-ties which would, if he had looked, have obstructed his view until he got within twenty feet of the track.

So it was that driving slowly in this wagon in the day time he approached this private crossing, drove up on it and was struck by the passenger train and killed.

The occurrence was witnessed by several persons who appeared upon the stand and gave their testimony, so that the statute has no application under the well settled rule.

It appears that the deceased drove up on this crossing without stopping to look and without looking. There was a whistling post about one thousand feet up the track at which the train whistled two long blasts. The whistle was heard by parties further away from the train than the deceased was.

One of the plaintiff's own witnesses testified explicitly and clearly to hearing this whistle when he was at or near the depot in Koscuisko, which was a good deal further away than this private crossing.

One or the plaintiff's own witnesses also testified that the deceased drove up on this crossing without even turning his head to look, that he had his head, and apparently his gaze, fixed directly ahead of him as he drove up on the crossing and undertook to pass over.

The witnesses testified expressly and repeatedly that he did not turn his head to one side.

It appears from the above that if the deceased had listened he could have heard the whistle at the whistling post. He seems not to have heard it. At all events he paid no attention to it.

It is also clear that even after driving past the cross-ties, there was a place of about twenty feet in the road approaching the railroad where if he had looked he could have seen the approaching train and he could have stopped, or attempted to stop, his slow moving wagon which had only one horse to it. He made no such effort.

In this case, there is no proof of any negligence on the part of the railroad. The proof rather tends to show that if the engineer had been looking out for this man, as it seems he was looking out, he could not have seen the man because of the cross-ties he was concealed behind, until he got very near to the track.

But negligence or not on the part of the railroad company, it was the cleanest sort of case of contributory negligence on the part of the deceased, and for that reason the case should be affirmed.

In addition to the foregoing, the court will observe that in this record on the motion of the plaintiff below, the court himself and the jury went to the scene of the accident, and they had a full examination of the witnesses before the jury on the scene of the accident, with the situation of everything pointed out to the jury. This court cannot tell, therefore, and the record does not show, what the judge who gave this peremptory instruction, as well as the jury, saw and had pointed out to them.

The court will observe that this peremptory instruction was given by the court below on the close of the plaintiff's testimony. Every word of the evidence in this record is plaintiff's own evidence, and they failed to make out a case.

OPINION

MCLAIN, J.

The plaintiffs in the court below brought suit against the railroad company for the killing of their father, Mr. S. A. Fuller.

The facts in evidence are these: There is a private road intersecting the right of way and track of the railroad company at practically right angles. The railroad runs east and west; the dirt road, practically north and south at the point of the intersection. This dirt road had been in use for a long period of time, variously estimated at from ten to twenty years; had been used by the people in that section for this period of time; and was the road which Mr. S. A. Fuller habitually used, and had been using for many years in going to and from his farm and back to his home, his farm being on the south side of the railroad and his home on the north side. The railroad company kept in repair the approaches to its right of way and crossing over its tracks of this dirt road. For a distance of five hundred and ten feet west of where the dirt road crosses the railroad, the track of the defendant is straight, and for an additional distance of one hundred and fifty feet west the track is almost straight having a slight curve, and the evidence is that the parties in charge of an approaching train from the west can easily see and discover, for a distance of six hundred and sixty feet west of the crossing, a person...