Illinois Cent. R. Co. v. Latiker

• Decision Date: 16 January 1911
• Docket Number: 14,898
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. LEE LATIKER

53 So. 955

98 Miss. 451

ILLINOIS CENTRAL RAILROAD COMPANY v. LEE LATIKER

No. 14,898

Supreme Court of Mississippi

January 16, 1911

APPEAL from circuit court, Holmes county, HON. J. M. CASHIN, Judge.

Suit by Lee Latiker, appellee, against the Illinois Central Railroad Company, appellant. From a judgment for plaintiff, defendant appeals.

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

Reversed and remanded.

Mayes &amp Longstreet, for appellant.

In 33 Cyc. 823, the following rule is stated:

"As a general rule, it is the duty of a person going on or near a railroad track, to use ordinary care and precaution under the circumstances to protect himself from the danger which he knows, or has reason to know, are incident to the operation of a road or the running of its trains; if he fails to do this he is guilty of contributory negligence, which will prevent a recovery. This rule applies generally, whether the person so situated is rightfully there by the express or implied invitation of the railroad company or otherwise, or whether he is a mere licensee."

Among the cases cited in support of this rule, is that of Nichols v. R. R. Co., 83 Miss. 139, and we cannot forbear quoting from the opinion in this case, it is so applicable to the present one.

"This is not a case in which the statutory presumption of negligence can be invoked. Where all the circumstances connected with an injury resulting from the running of a railroad train are in evidence, this removes all necessity for resorting to legal presumption, because the presumption must always give way to proof. . . . To state the case most strongly for the interest of appellant, he was a licensee and, as such, charged with the duty of using ordinary care to avoid injury. Being familiar with the operation of the railroad trains upon the pier where the accident happened, he should not have recklessly disregarded the information which he possessed and voluntarily placed himself in a position of obvious danger, as his own statement shows that he did. A licensee cannot east prudence to the winds and rely on the care of others to watch over and protect him. This is a more glaring case of contributory negligence on the part of a licensee than in the case of Murdock v. R. R. Co., 77 Miss. 487, and in that case it was held that the peremptory instruction for the railroad company was correctly given. . . . The peremptory instruction in this case asked for by defendant of the court below should have been granted. Unless the doctrine of contributory negligence is to be abolished entirely, this verdict must be approved."

In 33 Cyc. 828, we also find the following principles stated:

"The fact that the person injured or others have been in the habit of going upon, or walking along the railroad tracks with the company's knowledge, does not relieve him from exercising ordinary care, or as it has been held, the utmost care and vigilance for his own protection while on the track. If such use amounts to a license, it must be on the condition that the pedestrian has exercised ordinary care and diligence to avoid injury."

On page 835 Cyc. we find the following:

"It is contributory negligence in one, particularly where he is familiar with the locality and running of trains, to allow his attention to become absorbed by other trains or cars, so that he fails to observe the approaching train or cars by which he is injured, and which, by the exercise of ordinary care might have been discovered in time to avoid the injury."

There are numerous cases cited in support of these rules.

While we file a brief with citations to cases in which where the facts were not so strong as in the present one, the court gave peremptory instructions for the defendant, we pause in embarrassment from the very wealth of material before us.

To paraphrase the opinion in the case of R. R. Co. v Lee, 71 Miss. 898, appellee, if he had the right to stand between the tracks at the time in question, might be held to have acquired no right to use it in total disregard of all prudence and caution. He was not authorized to cease to look out for himself when there, and to assume that the railroad company would use its own otherwise than as it ordinarily and reasonably used the tracks generally. He might use the tracks, but he must use them with ordinary caution. He took his license cum onore.

To paraphrase from another case (concluding paragraph of Murdock v. R. R. Co., 77 Miss. 491), admitting that appellee did not see the freight train approaching, that fact is not controlling, because the final test is, could and should he have seen it under the circumstances testified to by himself and witnesses. That an affirmative answer must be given, we entertain no doubt.

Boothe & Pepper, for appellee.

We respectfully call the attention of the court to the great difference in fact, and principle, between the cases cited by counsel for appellant and the instant case.

In Nichols v. R. R. Co., 83 Miss. 139, Nichols on the pier of the railroad company was guilty of gross recklessness in attempting to pass between two uncoupled cars after seeing an engine rolling up in closs proximity to couple them together. His running sidewise to pass through before the impact of the engine showed that he saw the engine approaching.

In the case of Murdock v. Y. & M. V. R. R. Co., 77 Miss 487, cited in the opinion of the court in the Nichols case, Murdock was guilty of the same degree of recklessness in attempting to pass two cars of a standing freight train coupled together, when an engine was approaching to move the train. In both cases the plaintiffs were guilty of gross negligence, both of them took the chances of successful escape from a known risk.

The appellee was not a mere pedestrian and was not walking along the railroad tracks when he was struck; and this case now before the court is not covered by the citation for 33 Cyc. 823.

The question of contributory negligence was properly submitted to the jury. And, if the case had been tried...