Illinois Cent. R. Co. v. Carraway
| Decision Date | 22 April 1912 |
| Docket Number | 15284 |
| Citation | 58 So. 707,101 Miss. 813 |
| Court | Mississippi Supreme Court |
| Parties | ILLINOIS CENTRAL RAILROAD CO. v. E. D. CARRAWAY |
APPEAL from the circuit court of Madison county, HON.W. A. HENRY Judge.
Suit by Mrs. E. D. Carraway against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.
For former opinion, see 58 So. 222.
This was an action for damages based upon the alleged negligence of the railroad company in the killing of one W. D. Moore, a brother of appellee. The case was affirmed without written opinion on April 22, 1912. See 58 So. 222. A suggestion of error was afterwards filed by the appellant.
Moore was car inspector at Canton for the railroad company and had served in that capacity for three years and had been employed by the company in various lines of work for fourteen years. Canton was a relay station at which point crews were changed and cars which had gotten out of order on the run were taken out of the trains and sent into the shops for repair. On the day of the accident a through freight, called a manifest train, was being brought through Canton, the destination being New Orleans. At Canton, Moore after inspecting the train directed a certain car to be taken out of the train and sent to the shops for repair; after this had been done, a new engine was to be attached to the train so that it might proceed to New Orleans.
There are a number of tracks at Canton, and the engine, in charge of engineer Munn, which was to take the manifest train, was standing on a side track called a pocket track when Moore instructed the conductor that he could proceed with his train; thereupon the signal was given to Munn who ran his engine out of the pocket track onto the track where the manifest train was standing, and proceeded to back his engine up to the train in order to couple. As the engine backed up to the train it pushed its tender, which was heaped up with coal so that a view of the track by the engineer and fireman was somewhat obstructed at points close to the tender. As the engine backed northward in order to make the coupling engineer Munn was at his place on the right hand side of the cab, and the fireman was on the left side of the cab ringing the bell. A brakeman named Gorder preceded the backing tender at a distance variously estimated from twenty to sixty feet. The engine was going at about four miles an hour.
According to the testimony of defendant's witness Gorder, the brakeman, deceased, Moore, was walking along near the track talking to Gorder and stepped on the track at a point too close to the tender for him to be seen by the engineer or fireman, both of whom testified that they were on the lookout. Two or three persons saw his peril and shouted a warning, but a switch engine was standing on an adjoining track and the escaping steam was making some noise. At any rate, Moore seems not to have heard the warning, and the backing tender struck him and threw him to the ground and one wheel of the tender passed over his head killing him instantly. Among others who saw Moore's dangerous position was a switchman named Ward who says that he tried to signal the brakeman, Gorder, and the fireman, but could attract the attention of neither of them. The fireman testified that, when he saw that some one was evidently in peril, he called, "Look out," and the engineer immediately put on his emergency brake and stopped the engine in about four feet but too late to prevent the accident.
There is very little conflict in the testimony. It is disputed just when Moore did step upon the track, whether immediately before he was struck, or whether he was walking down the track for some time before being struck. Plaintiff's witnesses also deny that the fireman was looking back toward the train to which his engine was to be coupled, and for that reason could not be warned by those who saw the peril of deceased in time to prevent the accident. Plaintiff also takes the position that the brakeman, Gorder, who was to make the coupling and who must have known of the approach of the backing engine, should have warned deceased of his peril and, had he taken the proper precautions, the accident would have been prevented. The brakeman, Gorder, testified that he met deceased, Moore, between the tracks and stopped and asked him if everything was all right, and just as he did this he heard some one shout, "Look out," and he looked around and saw the wheel passing over deceased; that he was walking about twenty feet ahead of the backing engine; that he was on the engineer's side of the track and that Moore was on the fireman's side, and that Moore faced toward him when they spoke; that Moore was not in any danger at that time and that he did not see him step on the track. Witness Ward, however, testified that deceased was walking down the track some distance conversing with Gorder when he was struck. Ward's testimony is in substance as follows
Defendant asked for a peremptory instruction on the ground that the facts failed to show any negligence on the part of the employees of the railroad company, and the further ground that the plaintiff was guilty of contributory negligence and that he had placed himself in this dangerous position without taking the proper precautions.
The defendant also contends that section 1985 of the Code has no application. Said section is as follows:
The court refused the peremptory instruction, and the case went to the jury who returned a verdict for plaintiff for five thousand dollars, from which this appeal is taken.
Affirmed. Suggestion of error overruled.
Mayes & Longstreet, for appellant.
Taking the view of the plaintiff's witnesses themselves, they claim that the deceased was walking up the track and that Gorder was diverting his attention by talking to him. Conceding for the argument that somewhere along the line the railroad company is blamable as in the case of negligence, the plaintiff is not entitled to recover because of the manifest contributory negligence of the deceased.
The undisputed evidence in this case shows that he we was perfectly familiar with the yards, having been engaged in his existing duty for years in those yards. He was at the time in control of the train.
Granting that he was walking up the track, he was in a place where he had no business to be. He was in a place where it was not necessary for him to be, for he could just as well have walked up between the tracks in a place of perfect safety, as the witness Gorder did, without dispute. Unquestionably he was in a general way directing what was being done.
The theory of the plaintiff was that he was walking up to the train in order to inspect the air when the coupling was done. He knew, unquestionably, that the coupling was about to be made. He had released the engine and tender from the pocket track in order that it might back up and couple on. It was his business to be on the lookout, but instead of doing so he deliberately got on the. track and walked up the track in such a careless way that this engine which was running at a rate of less than five miles an hour, he permitted to run over him. If he engaged in conversation with Gorder, it was his own act. Gorder was nothing but a flagman; he had no power to compel this inspector to talk to him or...
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