Illinois Cent. R. Co. v. Schultz

• Decision Date: 12 February 1906
• Citation: 87 Miss. 321,39 So. 1005
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. WILLIAM SCHULTZ

39 So. 1005

87 Miss. 321

ILLINOIS CENTRAL RAILROAD COMPANY v. WILLIAM SCHULTZ

Supreme Court of Mississippi

February 12, 1906

FROM the circuit court of, first district, Tallahatchie county HON. SAMUEL C. COOK, Judge.

Schultz the appellee, suing by his next friend, was the plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

A train of the appellant company had been wrecked at the village of Oakland, and it became necessary to clear the main track of the wreckage in order to restore the track to proper condition for travel. The wrecking train had been ordered to the point and had been at work. To guard against collision with other trains, a flagman was sent to warn south-bound approaching trains, and a torpedo was also placed on the track about one thousand feet north of the point where the wreck was being cleared away. The torpedo was admittedly a dangerous explosive, and was used for the purpose, when exploded by being run over by an approaching engine, of serving as a warning of danger. At the time of the accident the main track had been placed in proper condition for travel, but the wreckage had not all been cleared away. Schultz, a boy about thirteen years of age, was going north from the station to his work, walking along the public road near the railroad track. A north-bound train, after passing the point from which the wreckage had been removed, exploded the torpedo, and by such explosion injured the appellee, who was walking near the track. The rules of the railroad company forbade the placing of a torpedo in proximity to a building or public thoroughfare.

Affirmed.

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

The company is not liable even in those accidents which occur where it appears that neither party is particularly to blame and in such case the railroad company is not liable, even to persons who are not trespassers, for such accidental injury. Cases illustrating accidents of this nature may be found as follows: 14 Am. & Eng. Ency. Law, 890; Gassaway v. Railroad Co., 69 Ga. 347; Schultz v. Railroad Co., 67 Wis. 616; Kuhn v. Railroad Co., 70 Ia. 561; Ketteringham v. Railroad Co., 62 Ia. 82; Steffen v. Railroad Co., 49 Wis. 259; DeFord v. State, 30 Md. 179; McHenry v. Marr, 39 Md. 510.

The verdict in this case was absolutely against the weight of testimony; and even giving the verdict of the jury all due regard, we cannot treat as settled the fact that Schultz was a traveler on a public street, and as such entitled to protection.

There being no negligence of any sort, and certainly no willful or wanton negligence, there can be no recovery by plaintiff, who was practically a trespasser. Williams v. Railroad Co., 69 Miss. 631 (s.c., 12 So. 957); Railroad Co. v. Anola, 78 Miss. 787 (s.c., 29 So. 768); Howell v. Railroad Co., 75 Miss. 242 (s.c., 21 So. 746).

Dinkins & Caldwell, for appellee.

Appellant's counsel in their brief confine themselves to those cases in which the courts undertake to define the duty owed by railroad corporations, to trespassers or licensees on their tracks or right of way, with much ingenuity avoiding the certain conclusion that the jury found that the plaintiff was neither a licensee nor a trespasser, but was lawfully in a public street, when injured.

The cases cited by counsel upon avoidable accident have no application here. The injury was the result of the explosion of a dangerous signal torpedo, which the defendant used at its own risk except as to such injuries as might occur on its own right of way when the torpedo was used for necessary signaling purposes, and without willful intent or reckless disregard of the rights of others.

The test that should be applied to distinguish between cases of accident in which no liability is incurred and those of trespass, for which the defendant must answer, is as to whether or not the...