Fulmer v. Illinois Central R. R. Co.

Decision Date26 January 1891
Citation8 So. 517,68 Miss. 355
CourtMississippi Supreme Court

FROM the circuit court of the second district of Yalobusha county HON. W. M. ROGERS, Judge.

This action was brought by plaintiff for the recovery of damages for the killing of her husband by defendant's cars while he was upon the track of defendant in the town of Water Valley.

There is evidence showing that defendant's main line, with a side track on either hand, traverses for some length one of the business streets in the town of Water Valley, and that the husband of the plaintiff was struck by a detached box-car while he was walking down the main line, and while he was about midway between two crossings used by the public, to wit, Wood street crossing and the post-office crossing, and that these two crossings were about thirty steps apart. It is shown, further, that the detached car was put in motion on a side track in the upper yard of defendant, in Water Valley about one hundred yards above Wood street crossing, and that the car was cut loose from the engine, which started it while running slowly, and was put on its tortuous course over several frogs, in order to make a flying-switch on the main line; that after starting the car, the engine accelerated its speed and ran down the main line to get out of the way of the detached car, and that the engine crossed Wood street and post-office crossings while running eighteen or twenty miles an hour, ringing its bell and blowing its whistle to warn persons of its approach.

It further appears that after the passage of the engine, the deceased stepped on defendant's track and proceeded to walk down the same some forty or fifty feet, when the detached box-car, having made its way from the side track in the upper yard and having passed over the several frogs to the main line, was seen rapidly running, having attained a speed of fifteen or twenty miles an hour, on such main line about twenty-five steps above deceased, and that deceased discovered this car at about the distance of twenty-five feet from him, and that he attempted to leave the track and save himself, but before he could do so, he was struck by the car and killed. On this flying-switch car an employe of the railroad was seen, and on the car was an ordinary brake to be used by this employe to control the car, but there is no proof that the brake was applied, or that the employe ever saw the deceased until he had been run down.

The evidence of several witnesses shows that the walking on and over these three tracks of the railway, between Wood street and post-office crossings, was good, and that this space between the crossings was used by the public in passing about this business street; and by one witness there is testimony showing that there was a path crossing the tracks diagonally, between the Wood street and post-office crossings, and that while deceased was in this path, and just where it went over the railway tracks, he was struck by the flying car.

It does not appear whether deceased looked and listened, after the passage of the engine, and before stepping upon the track, nor is there any proof that he could have seen the car as it was beginning the flying-switch if he had looked.

It was shown that the railway's employes habitually disregarded the law forbidding the running of trains at a greater rate of speed than six miles an hour, and that at all points along their line of railway it was their habit to make flying-switches, and run trains and cars at various rates of speed; and a witness was permitted to state that deceased had once been an engineer on that road, and had lived for some years in Water Valley, and that he must have known of the habit of the company to run its trains at a greater rate of speed than six miles an hour, to make flying- switches, and to use its tracks almost constantly in the town in making up trains, distributing cars, etc.

On this state of facts, substantially, the court below instructed the jury peremptorily to find for defendant.

Reversed and remanded.

W. S. Chapman, for appellant.

Making a flying-switch, especially...

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