Illinois Cent. R. Co. v. Archer

• Decision Date: 26 February 1917
• Docket Number: 18598
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. et al. v. ARCHER

74 So. 135

113 Miss. 158

ILLINOIS CENT. R. CO. et al. v. ARCHER

No. 18598

Supreme Court of Mississippi

February 26, 1917

APPEAL from the circuit court of Panola county, HON. E. D. DINKINS Judge.

Suit by Mrs. Jennie Archer against the Illinois Central Railroad Company and others. From a judgment for plaintiff, defendant appeals.

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

Judgment affirmed in part and reversed in part and cause remanded.

Sivley & Evans and Mayes, Wells, May & Sanders, for appellant.

Wm. C McLean, for appellee.

OPINION

SMITH, C. J.

Robert Archer was struck and killed by one of the trains of the Illinois Central R. Co. on November 7, 1911, and this suit was instituted by the appellee, his widow, against the company and its conductor and engineer in charge of the train which killed him, to recover damages therefor. This appeal is from a judgment in the widow's favor.

Archer was a carpenter in the employ of the railroad company at the town of Durant. The railroad tracks at this place run north and south. The yards of the company extend some distance both north and south of its depot building. A street known as "Mulberry street" crosses the tracks at right angles immediately north of the depot, and another, known as "Madison street," crosses the tracks at the same angle some distance north of Mulberry street. Along the west side of and parallel with the main track of the railroad is a brick walk, which was constructed and is owned by the appellant company, beginning at the depot building and extending north four hundred and thirty-one feet to Madison street. East of the railroad tracks, and immediately south of Madison street, is located the company's carpenter shop which is surrounded by a high board fence, the gate to which fence is ninety feet south of Madison street, and from which there is a walk parallel with the fence and tracks leading to Madison street. Between the brick walk extending north from the depot building and the fence surrounding the carpenter shop there are three railroad tracks, the one nearest the walk being the main line, the next being known as the "passing track," and the third, which is eight feet from the fence and within fifty feet from the brick walk, is used for storing north-bound freight cars and the passenger coaches of the Aberdeen Branch. On the west side of this brick walk are two other tracks, one of which is parallel therewith and on which the passenger train of the Tchula Branch stands when receiving and discharging passengers. This brick walk is used by passengers getting off and on the main line and Tchula Branch trains. There was evidence on behalf of appellants to the effect that, although the longest south-bound main-line trains extend the entire length of this brick walk, the furtherest point north at which such trains are opened for receiving and discharging passengers is two carlengths south of Madison street. On the 7th day of November, 1911, there were on the third track from the brick walk, the Aberdeen train, an oil tank car, a coal car and a box car. The box car was opposite the gate leading into the yard surrounding the carpenter shop. The coal car was several feet south of the box car and the tank car was south of, but, according to the evidence for appellants, coupled to, the coal car; and the Aberdeen train, which would shortly leave for Aberdeen, was standing opposite the depot building. The Standard Oil Company maintains an oil depot east of the railroad tracks, just north of Mulberry street. The conductor of the Aberdeen train was requested to back up to the oil car and move it south to a point opposite the oil spout, so that the oil therein could be transferred to the tanks of the oil company. Archer on the day before had been working on some timbers to be used in constructing a depot of the railway at Malone, a station some distance north of Durant, which depot was used by the company in aid of both its inter and intra state traffic. On the morning in question he arrived at the shop some time after six o'clock. His orders were to continue at work upon the timbers for the Malone depot, but before beginning the same, he cleared the shavings and debris from around his place of work and then stated to a fellow employee that he would go across to a south-bound passenger train, which had just then arrived, and get a newspaper. He left the yard through the gate opposite the tracks, walked south a few feet to the end of the box car, and attempted to pass between it and the coal car, The Aberdeen train, for the purpose of switching the tank car as hereinbefore stated, was, at the time Archer attempted to cross, backing north along this track. According to appellant's evidence this train came practically to a stand just prior to coming in contact with the tank car, when the engineer on the signal of the conductor caused the wheels of the engine to make one backward...