Gulf & S.I.R. Co. v. Boone

• Decision Date: 14 July 1919
• Docket Number: 20768
• Citation: 120 Miss. 632,82 So. 335
• Parties: GULF & S. I. R. CO. v. BOONE ET AL
• Court: Mississippi Supreme Court

82 So. 335

120 Miss. 632

GULF & S. I. R. CO. v. BOONE ET AL

No. 20768

Supreme Court of Mississippi

July 14, 1919

Division B

APPEAL from the circuit court of Covington county, HON. W. H HUGHES, Judge.

Suit by Clark Boone and others against the Gulf &amp Ship Island Railroad Company. From a judgment for plaintiff defendants appeal.

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

Judgment affirmed.

T. J. Wills, for appellant.

The statute provides, section 1985, Code of 1906, that proof of an injury inflicted by the running of locomotives or cars 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. Appellees, plaintiffs below, proved the injury and death of the deceased, Douglass Boone, by the operation of this northbound freight train, and relied upon the presumption of the statutes for the right to recovery for the injury so inflicted.

There was no effort made on the part of the plaintiffs to show how the injury was inflicted; there was no charge of a specific negligence or violation of duty on the part of the railroad company in inflicting the injury. Plaintiffs relied implicitly on the presumption of the statute to make out their case.

The defendant to meet the presumption of the statute and to discharge the burden cast on it by the presumption, showed, by the engineer, the facts and circumstances under which the injury was inflicted. The facts and circumstances surrounding the injury and death of the deceased, as explained by the engineer completely exonerates appellant from all blame.

In the Daniels case this court stated with reference to the prima-facie statute: "It is not necessary under this statute any more than it was before its enactment, that the proven facts and circumstances should exonerate the defendant, that it should appear therefrom that he had acted with due care on the occasion in question--before he can be relieved from liability. On the contrary, under the statute, as before its enactment, when the facts and circumstances have been ascertained, the jury must be able to say therefrom that the defendant was guilty of negligence; otherwise he cannot be held liable." Ala. & Great Southern R. R. Co. v. Daniels, 66 So. 730.

This announcement of the law is clear. The statute does not place upon the defendant the burden of proving itself free from blame; it places upon the defendant the burden of showing the facts and circumstances under which the injury was inflicted. When the facts and circumstances, are thus shown, the question of liability or nonliability, must be determined accordingly as the facts and circumstances disclose the presence or absence of due care on the part of the defendant.

This brings us to a consideration of the duty appellant owed the deceased, Douglass Boone, at the time he met his death. For the railroad company to be liable it must have owed to the deceased, Douglass Boone, a duty, which duty it wantonly or negligently breached, and the breach of which directly caused his injury and death.

It is fundamental that in every case involving actionable negligence, there are three constituent elements: First, the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; second, the breach of that duty owing to the injured party by the defendant; third, injury resulting from the failure of the defendant to perform this duty. All these elements must co-exist. If either one is absent, no liability will arise.

"It is elementary that actionable negligence exists only when one negligently injures another to whom he owes the duty created by contract or operation of law, of exercising care." B. & O. S.W. R. R. Co. v. Cox, 64 N.E. 119; Thiele v. McManus, N.E. 327. See to the same effect 1 Thompson on Negligence, par. 3, and Par Western Union Telegraph Co. v. Schriver, 4 L. R. A. (N. S.) 678.

What duty did appellant owe the deceased, Douglass Boone, that it failed to perform the breach of which was the proximate cause of his injury and death? It is necessary for us to examine carefully the relationship that each owed the other at the time of accident. The railroad was engaged in the operation of trains, it was being urged by the Government to speed up its transportation facilities and relieve the congestion of the traffic cost upon it by the preparation for war. The sovereign power had cast upon it the duty of speeding up its trains. That it might not assume any greater risk by so doing, the same sovereign power placed detachments from its army to guard the bridges against destruction by any human agency whatsoever. The deceased, Douglass Boone, was a guard charged with the duty of protecting the bridge against destruction that would menace the safety of appellant's trains, while in rapid transit in obedience to the government commands.

The deceased, Douglass Boone, was on guard duty charged with the obligation of being alert at all times, to use every one of his faculties, sight and hearing, to prevent the approach of anything earthly, human or otherwise near to or on this bridge that would menace its safety. Appellant knew that the deceased was there as a guard and knew what his duties were.

Could appellant reasonably anticipate that it would be necessary for it to blow a whistle to give this guard notice of any approaching train? Did it owe him the duty of running the train slowly over the bridge that it might protect him and guard his safety as it went by? To say that the railroad company owed him the duty of blowing the whistle or ringing the bell to give him warning of the approach of the train, and that, too, when the train was equipped with a bright headlight that the other guard could see when the train was a mile and a half away, would be to reverse the order of things. It would place upon the appellant railroad company, the duty of protecting the guards from injury rather than that the guards should be charged with the duty of protecting the railroad company from injury.

The most that can be said as to the duty imposed upon appellant, or the greatest duty that could be imposed upon appellant towards the deceased guard, would be a duty of keeping a lookout for him, and if he should be discovered in a place of peril, not to wilfully, wantonly, or negligently injure him after his peril had been discovered. This duty is not warranted by the relationship of the parties. Certainly it cannot be contended by any one, that the appellant railroad company owed to him a greater duty or any other duty than the one just stated.

The record in this case shows that with this duty imposed or assumed, that the railroad company did not violate such duty, but discharged it completely. The injury and death was inflicted as a result of the deceased's own wrongful act.

It is a well recognized principle of law that when the engineer in charge of a train sees a person on the track that he has a right to presume that he will get off of the track and in the clear. It is a much stronger presumption of law and of reason that when a person is on a track and a train is approaching and he gets off the track into a place of safety, that he will remain in a safe place. The engineer certainly had a right to indulge the presumption that having gotten off the track into a place of safety that he would remain in a place of safety.

The engineer was keeping a look-out and discovered the deceased on the track when he was a sufficient distance away to stop his train before he reached the point where the deceased was. He brought his train under control so that he could and would have stopped before he reached the deceased if deceased had remained on the track. Deceased got up and got off the track. The engineer indulging the presumption that he had a right to act upon that the deceased would remain in a place of safety, engaged himself in the discharge of the other duty imposed upon him, that is, the operation of his train. He put the train under headway again. When the train was from forty to sixty feet away the deceased guard ran back up on the dump to remove his overcoat and gun which he had left on or near the track, and in this attempt he brought his head in the pathway of the pilot and was killed.

There was a discrepancy as to the grade of the dump at the point where the injury was inflicted. Plaintiffs contending that it was eight or ten feet high while the engineer said two or two and a half feet high. The height of the grade is immaterial. The wound was in the top of the head and the steeper the grade of the embankment the less stooping would be the position of the deceased to bring his head in contact with the steel step of the pilot that unquestionably inflicted the injury.

This court in the case of L. N. O. & T. R. R. Co. v. Williams, 69 Miss. 631, in discussing the liability of the railroad company for the death of a girl who was struck and killed while lying flat on the track, said: "The test of responsibility is, did the striking of the child by the train occur after the engineer had seen--not might or ought to have seen--that is, discern or distinguish the girl?"

The test is, was everything done after the peril of the injured party was discovered that could be done, to avoid the injury? It is clear and evident from the record that the proximate cause of the injury and death of private Douglass Boone, was the result of his own negligent and unthoughtful conduct. He was on guard duty and should not have been lying down on the track. When his position on the track was discovered and the train brought under control, so that it would stop before it reached him, he got up and got off the track on the ground in a place of safety. While in a...