Howell v. Illinois Central Railroad Company

• Decision Date: 12 April 1897
• Citation: 75 Miss. 242,21 So. 746
• Court: Mississippi Supreme Court
• Parties: SOLON H. HOWELL v. ILLINOIS CENTRAL RAILROAD COMPANY

21 So. 746

75 Miss. 242

SOLON H. HOWELL v. ILLINOIS CENTRAL RAILROAD COMPANY

Supreme Court of Mississippi

April 12, 1897

March 1897

FROM the circuit court of Copiah county HON. ROBERT POWELL, Judge.

Action by plaintiff for damages for the killing of his son, Solon H Howell, Jr., an infant, at Hazlehurst, Miss. on May 2, 1895. The jury was instructed to find for the defendant, and plaintiff appealed from the judgment entered upon the verdict.

Affirmed.

W Calvin Wells, for the appellant.

Defendant was not entitled to a peremptory charge in its favor. Railroad Co. v. Doyle, 60 Miss. 985; Packet Co v. Edwards, 62 Ib., 534; Railroad Co. v. McArthur, 43 Ib., 180; Goodman v. Foxworth, 48 Ib., 608; Assurance Co. v. Mayer, 64 Ib., 797; Tribette v. Railroad Co., 71 Ib., 227; Holmes v. Simon, 71 Ib., 245; Richardson v. Tolliver, Ib., 966; Nesbitt v. Greenville, 69 Ib., 22; Cantrell v. Railroad Co., Ib., 438; Lowenstein v. Powell, 68 Ib:, 73; State v. Spengler, 74 Ib., 129.

The fact of the killing of plaintiff's son by the running of its trains made a prima facie case of liability, under § 808, Code of 1892. The defendant rested under the burden of all the necessary exculpatory facts. Railroad Co. v. Hamilton, 62 Miss. 503; Railroad Co. v. Phillips, 67 Ib., 250; Railroad Co. v. Phillips, 64 Ib., 693; Railroad Co. v. Bourgeois, 66 Ib., 385. A precedent wrong of the injured person does not prevent the application of the statute. Railroad Co. v. Phillips, 64 Miss. 693; Railroad Co. v. McGowan, 62 Ib., 683; Roberds v. Railroad Co., 74 Ib., 334. Where trains are run through corporate towns faster than six miles an hour, as in this case, the company becomes liable for all injuries sustained by anyone from the locomotive or cars of the company while so running contrary to the statute. Code 1892, § 3546.

The answer to the defense of contributory negligence is twofold: [1] The plaintiff's son was killed by the running of the train, and the law imputes negligence to the defendant; [2] the train was running through Hazlehurst faster than six miles an hour. It is clear, moreover, that the speed of the train was wilfully increased by the employes in charge of the same, after plaintiff's son and the other boys embarked on the train. When defendant's negligence is wilful, contributory negligence is not a defense. Beach on Contributory Negligence, 46, 50, 63, 64, 65, 416; Wallace v. Merimack, 134 Mass. 96; Banks v. Highlander, 136 Ib., 485; Palmer v. Railroad Co., 112 Md., 250; Cates v. Railroad Co., 98 Md., 552; Bottoms v. Railroad Co., 114 N.C. 717; Cooley on Torts, p. 674; 2 Thompson on Negligence, 1160.

There is nothing in the record to show that the deceased boy ever undertook to get off the train; and we are in the dark as to those facts upon which the charge of contributory negligence must rest. It is also by no means clear that one of his tender years has such capacity as to warrant the defense of contributory negligence. Railroad Co. v. Hirsh, 69 Miss. 135; Railroad Co. v. Caldwell, 74 Pa. St., 421; Westbrook v. Railroad Co., 66 Miss. 596; Railroad Co. v. Delaney, 82 Ill. 201; City of Vicksburg v. McLain, 67 Miss. 14; Railroad Co. v. Mackey, 29 L. A. R., 757; 57 Tex., 126; 22 Kan. 692; McMullein v. Railroad Co., 46 Ia., 233; Plumley v. Burse, 124 Mass. 57; Drake v. Kiely, 93 Pa. St., 497; Railroad Co. v. McWhirter, 77 Tex., 330; Kerr v. Forgee, 54 Ill. 482; Dowd v. Inhabitants, 116 Mass. 93; Sherman v. Railroad Co., 72 Mo. 65; Brennan v. Fairhaven, 29 Am. Rep., 679; Avery v. Railroad Co., 16 S.W. Rep.. 1015; Muelhauser v. Railroad, 91 Mo. 332, 334; Railroad Co. v. Moore, 83 Ga., 453; Beddle v. Railroad Co., 112 Pa. 557; Railroad Co. v. Bohn, 29 Mich. 513; Beach on Con. Neg., sec. 204; Dowling v. Allen, 88 Mo. 293.

Mayes & Harris, for appellee.

We insist that there is no negligence shown in this case of which the plaintiff can complain. The only negligence that they could charge was, that the train's running through the town at a greater rate of speed than six miles an hour was negligence. But we insist that it is not negligence of which the plaintiff can complain or the deceased could have complained. The negligence of which the plaintiff could complain, or of which the deceased could have complained, is of some breach of duty to him, and it cannot be pretended that the company owed him any duty to slacken the speed of its train through the town of Hazlehurst, and, therefore, it was no negligence as to him; and, if it was negligence, unquestionably, according to their own showing, it was offset by the contributory negligence of the plaintiff.

It is urged by appellant, among other things, that the court erred in giving the peremptory instruction, because it should have been left for the jury to pass upon the question as to young Howell's capacity. But we think it too plain to require argument or citation of authority, that there was nothing in this point, and we think it is abundantly settled by authority that the court was right in not submitting that fact to the jury. Mr. Beach on Contributory Negligence [2d ed.], sec. 117, states the rule to be: "When there is no doubt as to the capacity of the child, at one extreme or the other, to avoid danger, the court will decide it as a matter of law." Some of the cases holding, as a matter of law, that children are guilty of contributory negligence, are as follows: 53 Me., 384; 88 Mo. 293; 64 Mich. 196; 39 Minn. 164; 35 Minn. 256; 124 N.Y. 308; 137 Mass. 179; 141 Mass. 335; 46 Mich. 504; 97 Ill. 71; 56 Iowa 496; 93 N. C., 92; 100 Pa. St., 144; 95 Pa. St., 398; 39 Mo. 438; 126 Mass. 377; 14 R. I., 314; 88 Pa. St., 520; 23 Kan. 347, child four years and eight month; 24 Kan. 627, child of five years; 85 Iowa 634, boy nine years; 64 F. 830, boy nine years; 80 Hun [N. Y.], 364, boy of six years warned; 54 Kan. 551, boy between nine and ten warned. See, also, 2 Am. & Eng. Enc. L., 750. These cases cover all ages between seven and fourteen.

Of course, we recognize the well-settled rule that where there is a dispute or controversy as to facts, the case is for the jury. But where the facts are as clearly made up as in this case, there is nothing for the jury to pass on.

The burden of proof is on the plaintiff to show in this case that the child of thirteen years of age was not of sufficient capacity to appreciate the danger, or to be clear of contributory negligence. On the contrary, the plaintiff has shown by his own witnesses that the child was one of exceptional capacity and was fully warned as to the danger, and on these points there is no dispute.

There is no fixed rule or fixed age in civil actions governing this matter. It is true that when we get into the realm of criminal law the case is different, and it is there held that the burden of proof is on the prosecutor to show that the defendant was of capacity to understand the character of his act, and in certain cases, in regard to certain crimes, there are conclusive presumptions of innocence or absence of guilty intent within certain ages. But these rules do not apply to civil controversies and actions of tort, either where the infant is plaintiff or defendant.

We deny that this was a breach of duty, or that a trespasser on a train can be heard to complain that the rate of speed was such that he could not get off in safety. In the absence of any compulsion or inducement on the part of the agents of the company, and where his act is voluntary, the statute in regard to the rate of speed through towns and cities is not intended for the protection of parties on the train, even if the parties are rightfully there as passengers. The train in question here was a through freight train, not intended for passengers, one on which it was against the rules of the company to carry passengers, and if the parties had been passengers, by a positive statute of this state, the company would have been liable only for gross negligence. See § 3557, Code of 1892. While running through a town at a greater rate of speed than six miles an hour has been said by our courts to be negligence per se, it has never been held that it is gross negligence per se, and certainly if the company would only be bound to a passenger for gross negligence, can it be contended--will this court hear argument on the proposition--that a higher duty was owed to this boy, who was a trespasser, a violator of the law?

This court has held, in repeated cases, that to a trespasser on the train or on the track, be he infant or adult, the company owes no duty other than not to wantonly or wilfully injure him. Christian v. Railroad Co., 71 Miss. 237; Railroad Co. v. Williams, 69 Miss. 631; Railroad Co. v. Watly, Ib., 145. Appellant also relies upon some claim to error in the action of the court below, by reason of some presumption to which they claim the plaintiff is entitled under the code of 1892, § 1808. That section provides that proof that the injury to persons or property was inflicted by the running of locomotives and cars, shall be prima facie evidence of the failure to exercise reasonable care or skill with reference to the injured.

Now, we grant that if there was nothing in the case beyond bare proof that the injury was inflicted by the running of the cars, the plaintiff would be entitled to the benefit of the statute, and the presumption would attach. But we insist that, for the plainest reasons, the statute invoked cannot find operation in this case:

1. Because all the facts are in evidence, and, that being so the presumption must yield to the facts. Railroad Co. v. Phillips, 64 Miss. 696; Railroad Co. v. Holt, 62 Miss. 170; Railroad Co. v. Hamilton, Ib., 503. As Judge Campbell said, in 64 Miss. 704, speaking of this statute: "The statute does not require the company to...