Illinois Cent. R. Co. v. Ash

• Decision Date: 27 March 1922
• Docket Number: 22436
• Citation: 128 Miss. 410,91 So. 31
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. ASH

91 So. 31

128 Miss. 410

ILLINOIS CENT. R. CO. v. ASH

No. 22436

Supreme Court of Mississippi

March 27, 1922

APPEAL from circuit court of Panola County.

Action by Molly Ash, for herself and children, against the Illinois Central Railroad Company, for damages for the negligent killing of her husband. From a judgment for plaintiff, the defendant appeals. Reversed, and judgment for the defendant.

Judgment reversed.

May Saunders & McLaurin, for appellant.

The Refusal of the Peremptory Instruction Requested by Appellant. The proof shows without contradiction that at the time the deceased was killed he was a trespasser, and the only duty that the appellant owed to him was not to wilfully or wantonly injure him, if, and when, his position of peril was discovered. If the perilous position of the deceased on the track was not discovered by the engineer, then he was guilty of no negligence in the operation of the train. His failure to attempt to give warning to the deceased and his family, or to make an attempt to stop the train cannot be imputed to him as a fault. The engineer was under no duty to be on the lookout for the deceased, but he and the fireman, as they were endeavoring to keep a lookout, did not and could not see the deceased on the track, by reason of conditions over which they had no control--a violent storm, which was the act of God. The engineer testified without equivocation and without contradiction, that because of weather conditions he could not see the pilot of his engine. Under these circumstances the rule of law applicable to the facts is too well settled to justify extended discussion.

The most recent announcement of the law in such cases, we believe, is to be found in the case of Hubbard v Southern Ry. Co., 83 So. 247. This court in that case speaking through ETHRIDGE, J., announced in unmistakable language the settled rule of law regarding the duty of a railroad company toward trespassers, as follows: "He was a trespasser upon the track of the defendant and the defendant owed him no duty except not to wilfully or wantonly injure him after discovering his presence on the track. The testimony is undisputed that the engineer and fireman did all they could to stop the train before the injury, after they saw the plaintiff but could not do so."

The court decided that under the circumstances there shown, the railroad company was entitled to a peremptory instruction. The same rule has been announced in the following well considered cases: Fuller v. I. C. R. R. Co., 100 Miss. 705, 56 So. 783; Ala. etc. R. R. Co. v. Daniel, 108 Miss. 358, 66 So. 730; Yazoo, etc., R. Co. v. Smith, 111 Miss. 471, 71 So. 752; N. O., etc., R. Co. v. Harrison, 105 Miss. 18, 61 So. 655.

There is nothing in the record that warrants the assumption that the engineer either wilfully or wantonly injured the deceased. The accident happened in the country, not at a crossing, and under such circumstances as warranted the trial court in peremptorily charging the jury that the deceased was a trespasser, and this being true, it must likewise be true that the court ought to have given the peremptory instruction to the jury to find for the defendant, because of the absence of any testimony indicating that the engineer was guilty of either wantonness or wilfulness. The engineer and his fireman both testified that the water, steam and mist immediately in front of the engineer were so great as to completely obscure his vision. This was not contradicted, and this being true, the fact is established that he did not see the deceased on the track and could not, and under these undisputed facts the defendant was entitled to the peremptory instruction. This is not a case of an injury as a crossing or in a municipality, but it was out in the country a mile and a half from the nearest town.

J. F. Dean, for appellee.

Upon the record in this cause, it occurs to us that there is but one point at issue in this court, and that is covered by appellant's third assignment of error: "That the trial court erred in refusing a peremptory instruction for the defendant."

This court has said that it is a rare case of negligence that will be taken away from a jury. It is also a well-established rule of this court, that a peremptory instruction should never be given, where there is material conflict in the testimony. Where the testimony is conflicting, it is for the jury to say and not for this court, what weight should be given to that testimony. Is there testimony in this case, which if believed by the jury would entitle the plaintiff to recover? If so, this cause should be affirmed. While we do not agree with the trial court that Henry Ash, deceased was a trespasser, but we contend that he was a licensee, Dillon v. I. C. R. R. Co., 111 Miss. 520, yet, we shall argue this case as though he were a trespasser, adopting the court's idea.

If Henry Ash was a trespasser, we admit that the railroad company owed him no duty. They were under no duty to keep a lookout. But if as the engineer and fireman both testified that they were maintaining a lookout, then they owed him the duty not to wilfully or negligently injure him, after his position of peril was discovered.

This court having said in Harrison v. Railroad Co., 93 Miss. 40, in a case very similar to this: "Questions for the solution in this case, is, whether the engineer did see or, under the circumstances, ought to have seen the child in time to have avoided the injury and this testimony was valuable in solution of that question." If in this case the engineer and fireman were on the lookout as they claimed they were, then the question is, did they see, or under the circumstances, ought to have seen, the deceased in time to have avoided the injury.

In the case of N. O. & M. R. Co., 61 So. 55, is a case where a man was in drunken stupor asleep on the track and was killed by appellant's train. The engineer testified that he was on the lookout and did not see the man until he was seventy-five yards from him, when he did everything possible, to avoid the accident. Several other witnesses testified that they had made experiments to ascertain how far the deceased could have been seen, lying on the ground as the engineer said he was, when he was run over and killed. These witnesses stated that standing on the ground, the deceased could have been seen and recognized by them as a man while they were two hundred yards away. Although this man, was guilty of the grossest carelessness the grossest kind of contributory negligence, a trespasser, drunk on appellant's track, still the court held that this testimony was sufficient to take the case of plaintiff to the jury.

In the case at bar, the engineer testified that he did not see could not see beyond the pilot of his engine, and that he did not and could not see the deceased, that he was on the lookout, other witnesses state that, standing on the ground that they distinctly saw the deceased lying on the ground and the train passing over him at a distance of two hundred yards. The engineer testified that when backing up, that it was a physical impossibility on account of the rain for him to see the rear of his train. Yet the flagman says that fifty feet in advance of the rear end of the train he could see and did see the engineer, and the engineer could see and did see him, accepted his signals, recognized them and handled his train accordingly. That he, the flagman, saw the deceased lying on the track a hundred...