Illinois Cent. R. Co. v. Seamans

• Decision Date: 29 April 1901
• Citation: 79 Miss. 106,31 So. 546
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. FRANCES A. SEAMANS

31 So. 546

79 Miss. 106

ILLINOIS CENTRAL RAILROAD COMPANY v. FRANCES A. SEAMANS

Supreme Court of Mississippi

April 29, 1901

FROM the circuit court of, second district, Yalobusha county. HON PERRIN H. LOWREY, Judge.

Mrs Seamans, appellee, was the plaintiff in the court below; the railroad company was defendant there. The suit was for the wrongful death of plaintiff's son, a fireman in defendant's employ, who was killed at Hudsonville Marshall county, in February, 1900, by the overturning of his engine. The plaintiff was decedent's only parent; she recovered a judgment for $ 6,000 in the court below and the railroad company appealed to the supreme court.

There was controversy touching the facts, but as found by the jury the case was substantially as follows:

The railroad company had constructed a house for the reception of cottonseed in a deep cut several hundred feet in length through which its main track and a side track passed. The house had but one door or opening into it which was placed next to the tracks. The side track passed within a few feet of the seed house. There was a grade crossing something over four hundred feet north of the house and another a short distance south of it, made by digging down the banks. The only way wagons loaded with seed for deposit in the house could reach it for unloading was to descend to the tracks at the south crossing, turn up the side track at right angles and proceed, with at least one wheel on the side track, to the seed house door. This condition of affairs had existed for a considerable time. In unloading cottonseed from wagons into the seed house appreciable quantities had been wasted and were permitted to remain on the company's tracks. Many cattle were permitted habitually to wander at large in the vicinity, and they were enticed upon the tracks by the wasted seed, which cows eat with relish. A number of cows had been killed by the cars of the company in front of the seed house and near it before the time of the accident in question. There was a curve in the road a short distance south of the place which prevented the engineer of a train from seeing cattle on the track in time to prevent striking them when running at a high rate of speed, and the schedules of the company required the train, on which the plaintiff's son was an employe, to run rapidly in passing there. On the occasion in question the northbound train, on which plaintiff's son was the fireman, was running as required by the schedules; it reached Hudsonville about 7 o'clock in the evening, after dark. There was a cow on the track near the seed house which the engineer and fireman did not observe in time to prevent the locomotive striking it; it was run over, the engine overturned and the fireman plaintiff's son, killed. The son, who was twenty-one years of age, contributed largely to his mother's support.

Affirmed.

J. M. Dickinson and Mayes & Harris, for appellant.

Conceding for the sake of argument, merely, that the company was negligent in regard to the cottonseed house and strewing cottonseed on the track, yet, under repeated decisions of this court, there could be no recovery, because the record fails to show a causal connection between this negligence and the accident. It was not the proximate cause.

To say that the cow was going to the cottonseed on the track, or was attracted to the track by the cottonseed, in the very nature of things, must be the merest conjecture.

We might go so far as to say, probably she was going to the cottonseed house, but the case cannot be decided on mere probabilities. She might have been going to the gin. There was the same attraction there. You have to conjecture that she was going for cottonseed at a particular place. Cottonseed are not the only things that attract cattle on the railroad track.

The law does not allow a jury to indulge in this kind of speculation. It is too well settled for argument, that the causal connection must exist. It should have been shown that the cow was there for the cottonseed.

In the case of Woolley v. Illinois, etc., R. R. Co., 77 Miss. 927, this court has said, "mere conjecture will not support a judgment in any case." Owen v. Illinois, etc., R. R. Co., 77 Miss. 142; Illinois, etc., R. R. Co. v. Cathey, 70 Miss. 332.

There must be a causal connection between the negligence and the injury, and there is no causal connection shown in this case, between having the cottonseed house constructed as it was, and running over a cow fifty yards from there, which happened to be on the right of way and jumped in front of a rapidly moving train. Howell v. Illinois etc., R. R. Co., 75 Miss. 242; Vicksburq, etc., R. R. Co. v. Hart, 61 Miss. 468; Chicago, etc., R. R. Co. v. Trotter, 61 Miss. 417.

If the cow had been struck at the cottonseed house, the plaintiff would not be entitled to recover on that ground alone.

The facts show, as we have above set forth, that there was nothing peculiar about this cottonseed house in regard to the attracting cattle. It is shown that there was an exceptionally large number of cattle in this particular vicinity, but the proof is undisputed that conditions existing at this place in regard to cattle, were not different from those anywhere else along the line, considering the number of cattle in the vicinity and the proof as to cattle struck near the seed house.

It is notorious that in this state these cottonseed houses exist at every station on the line of a railroad. Cottonseeds have in recent years grown to be a most important article of commerce and source of wealth to our people. For the convenience of shippers, cottonseed houses are established at the various stations along the line of the road, where they can be stored until they can be loaded into the cars in bulk, and thus shipped to market, giving to the farmer the best facilities for getting the best prices for his product. During certain seasons of the year this is one of the most important parts of railroad traffic. That cottonseed have to be loaded from these houses into the cars, and from wagons into the houses, are necessary features of the business.

That cottonseed will be strewn about these houses, near the railroad track, necessarily follows, but they will be scattered, more or less, by any other mode of loading, as shown by the testimony. That these are likely to attract cattle, just as grass on the right of way will and does attract live stock, is generally known. In fact, live stock is liable to be encountered on the right of way at all times and at all places. Therefore, when an employe takes service with a railroad company, in connection with the running of trains, the fact that cattle will be likely to stray upon the track, or be attracted there by cottonseed, by grass, by numerous other things which we might enumerate, must be taken as one of the risks of the employment.

The company cannot, of course, erect dangerous obstructions upon the track, nor do those unnecessary and negligent acts which would render the track specially dangerous. But if, in the conduct of a legitimate business, straying cattle are likely to be attracted to the railroad track, as in the case of transportation of cottonseed, this must be taken as one of the risks of the employment. This business is general. Its peculiarities and characteristics are notorious, and it cannot be held that a railroad company is guilty of negligence to an employe because it conducts its business in this manner, and because cattle or stray live stock are likely to be attracted to the track thereby. It might as well be said that the railroad company should keep grass from its right of way, and that it should protect its track from straying live stock for the benefit of employes. It has been expressly held, in well considered cases, that the likelihood of cattle straying on the track anywhere is one of the risks of the employment. Patton v. Central Iowa Ry. Co., 73 Iowa 306; Sweeney v. Central Pacific Ry. Co., 57 Cal. 15; Fleming v St. Paul, etc., R. R. Co., 27 Minn. 111; Magee v. Railroad Co., 78 Cal. 430; Carper v. Receivers, etc., 7 Am. & Eng. R. R. Cases, 75; 3 Elliott on Railroads, secs. 1192, 1270.

Railroad companies are not required by law in Mississippi to fence...