Illinois Cent. R. Co. v. Lee

• Citation: 71 Miss. 895,16 So. 349
• Court: United States State Supreme Court of Mississippi
• Decision Date: 07 May 1894
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. WILLIAM CLARENCE LEE

16 So. 349

71 Miss. 895

ILLINOIS CENTRAL RAILROAD CO. v. WILLIAM CLARENCE LEE

Supreme Court of Mississippi

May 7, 1894

FROM the circuit court of Copiah county. HON. J. B. CHRISMAN Judge.

In the town of Wesson there is a switch of the Illinois Central railroad, known as the "horn switch," situated except where it crosses the streets of the town, wholly on the lands of the Mississippi Mills Company. It was constructed many years ago, at the request of the mills company, by it and the railroad company jointly, and, while used as a regular switch of the railroad, it was mainly for the convenience of the mills in loading and unloading freight. Its use by the public as a foot-way was acquiesced in by the railroad. At the time in question two box-cars were standing on the switch just north of a street that crossed it nearly at rightangles. Ida Lee, aged nineteen, the mother of the minor plaintiff, walked on the street to a point very near its intersection with the switch, and crossed by a foot-path to the track, and proceeded walking slowly down the track, southwardly. As she was approaching the switch, an engine, with one car attached, pulled slowly up the switch northwardly, and stopped at the two detached box-cars. Her view of the engine and cars was unobstructed. After coupling to these, it backed slowly down the track, and, while so doing, overtook and killed her. At the moment of the accident the engineer was at his post directing and managing the engine, the fireman was in the cab shoveling coal, and the brakeman, the only other person on the train, was on one of the rear cars, and none of them saw the woman, or from their position could have seen the track south of the train. The whistle was not sounded. There is conflict of evidence as to whether the bell was ringing. There was some evidence tending to show that deceased was somewhat deal

Further facts, throwing light on the question of contributory negligence as deduced by the court from the record, are given in the opinion.

This action was brought by William Clarence Lee, minor child of the deceased, suing by next friend, to recover damages of the railroad company for the alleged negligent killing. It is unnecessary to set out the instructions. Verdict and judgment for plaintiff for $ 2,750. Motion for new trial overruled and defendant appeals.

Reversed and remanded.

Mayes & Harris, for appellant,

Filed a brief, discussing at length all the points presented by the record, and, as to the controlling question of contributory negligence, citing the following authorities: Railroad Co. v. Stroud, 64 Miss. 784; 65 Pa. 269; 72 Ill. 347; 21 Minn. 293; 66 N.Y. 243; 42 Ib., 468; 41 Ib., 525. This case is readily distinguishable from Railway Co. v. Summers, relied on by appellee. In that case the train, by passing the woman injured, misled her as to its future movement. Besides, she was where she had a right to be and where she had the right to expect warnings. In this case the engine was in plain view, engaged in switching. Deceased failed to look for the return of the engine, but walked very slowly down the track, heedless of danger. If she was deaf, and the wind blowing, the greater the need for care on her part.

Calhoon & Green, for appellee.

There was no lack of ordinary care on the part of deceased. The switch was habitually used by the public as a foot-way, and with the acquiescence of the company. There was no negligence in going upon it and using it as such. Railroad Co. v Shearer, 58 Ala. 672. Under the circumstances, the deceased had the right to suppose that an alarm would be sounded, at least in crossing the street behind her, and, in fact, continuously, as it was in town. Nine persons out of ten would have acted as she did. The finding of the jury as to this should be accepted, unless manifestly wrong. We submit it was clearly right. The instructions being correct, the verdict will not be disturbed. Railroad Co. v. Jobe, 69 Miss. 452; Railway Co. v. Summers, 68 Ib., 566. The last case is exactly in point. Railroad Co. v. Stroud, 64 Ib., 784, is not in point, since the injured person was where he had no right to be. So in Dooley v. Railroad Co., 69 Miss. 648...