Hicksman v. Kansas City, Memphis And Birmingham Railroad Co.

• Decision Date: 21 January 1889
• Citation: 66 Miss. 154,5 So. 225
• Court: Mississippi Supreme Court
• Parties: JULIA A. HICKSMAN v. THE KANSAS CITY, MEMPHIS AND BIRMINGHAM RAILROAD CO

5 So. 225

66 Miss. 154

JULIA A. HICKSMAN v. THE KANSAS CITY, MEMPHIS AND BIRMINGHAM RAILROAD CO

Supreme Court of Mississippi

January 21, 1889

October 1888

FROM the circuit court of Union county, HON. W. S. FEATHERSTON Judge.

Appeal from judgment sustaining a demurrer to a declaration.

The opinion states the case.

Judgment reversed and cause remanded.

Clayton & Anderson, for appellant.

The declaration states that the injury was caused by negligence of the defendant, and that was sufficient. § 1059 of the code of 1880 provides that "proof of inflicted by the running of the locomotives or cars of such shall be prima facie evidence of the want of reasonable skill care on the part of the servants of such company." Under statute after proof of the injury, it would not be necessary prove that the deceased was without fault; then what is necessity for alleging it?

Plaintiff is only required to allege a prima facie case. 7 Miss. 395. See also R. R. Co. v. Phillips, 64 Miss. 693; R. Co. v. Hamilton, 62 Miss. 503; R. R. Co. v. Packwood, 59 Miss.

Contributory negligence is a matter of defense, to be set up the defendant. The question involved here was not discussed in the case of Vicksburg v. Hennessy, 54 Miss. 391. The better rule, one which is sanctioned by the greatest number of authorities, that the defendant must allege and show contributory negligence, this is relied upon to defeat a recovery.

J. W. Buchaman, for appellee.

Section 1059 of the code has not changed any rule of pleading. The same allegations are required now as before its enactment. It only provides that when a certain fact (an injury) is proved, this is prima facie evidence of the want of reasonable skill and care on the part of defendant.

This statute relates to the proof, and not to the pleading. Everything necessary to be proved must be alleged in the declaration. In the case of The City of Vicksburg v. Honnessy, 54 Miss. 391, our supreme court held that it was necessary for the plaintiff to prove, in addition to the fact that the injury was caused by the negligence of the defendant, that it was without negligence on the part of the plaintiff. In every personal injury suit in this state it is necessary to prove: 1. That there was an injury inflicted. 2. That the injury was the result of the want of reasonable skill and care on the part of the railroad company. 3. That the plaintiff himself was not negligent or that his negligence did not contribute to the injury. Here, as there was no allegation to negative the fact of negligence on the part of the deceased, and as every inference points to his negligence, there is no cause of action. It is alleged that the engines and cars were recklessly and negligently propelled against the deceased, without stating the facts constituting the recklessness, and without stating where the deceased was, whether at a crossing, where he had a right to be, or on the track, drunk, where he had no right to be. The plaintiff must specify the facts constituting defendant's negligence, and, in addition, aver that he did not contribute to the injury. Thompson v. R. R. Co., 23 Am. & E. R. R. Ca. 289; R. R. Co. v. Greany, 24 Ib. 473, and note on page 478; R. R. Co. v. Walker, 32 Ib. 121; Smith on Negligence 381, and note.

It is admitted that it is held in a majority of the states that it is not necessary for the plaintiff to allege and prove that he was in the exercise of due care; but in Mississippi and some other states this is necessary.

J. W. Buchanan argued the case orally.

OPINION

ARNOLD, C. J.

Appellant plaintiff in the court below, sued appellee to recover damages on account of her husband being killed by one of its trains. It is alleged in the declaration that the death was caused by the...