Illinois Cent. R. Co. v. Turner

• Decision Date: 18 December 1893
• Citation: 71 Miss. 402,14 So. 450
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. DANIEL TURNER

14 So. 450

71 Miss. 402

ILLINOIS CENTRAL RAILROAD CO. v. DANIEL TURNER

Supreme Court of Mississippi

December 18, 1893

FROM the circuit court of the first district of Yalobusha county HON. EUGENE JOHNSON, Judge.

Action by Daniel Turner against the Illinois Central Railroad Co. to recover for personal injuries. Plaintiff had judgment for $ 1,500. Motion for new trial overruled. Defendant appeals.

Affirmed.

Mayes &amp Harris, for appellant,

Filed a brief discussing the evidence and contending that the case as to contributory negligence of plaintiff, is controlled by Railroad Co. v. Jobe, 69 Miss. 452; Crawley v. Railroad Co., 70 Ib., 340; Shands v. Railroad Co., MS. Op.

W. S. Chapman and P. C. Chapman, for appellee.

The question of the negligence of the railroad company, and that of the contributory negligence of the plaintiff, were properly left to the jury. See Railroad Co. v. McGowan, 62 Miss. 682; Fulmer v. Railroad Co., 68 Ib., 355; Railroad Co. v. Summers, Ib., 566; Railway Co. v. French, 69 Ib., 121.

R. F. Kimmons, on the same side,

Filed a brief devoted exclusively to the discussion of the evidence, contending that the defendant was guilty of negligence, while the plaintiff was free from contributory negligence.

Argued orally by Edward Mayes, for appellant, and W. S. Chapman, for appellee.

OPINION

WOODS, J.

We shall consider only that assignment of error pressed upon our attention by counsel for appellant in oral argument and in their brief, viz., the refusal of the court below to charge peremptorily for appellant. The rule authorizing and requiring such charge has been so repeatedly and so fully stated by us in recent cases that we find it unnecessary to attempt its announcement afresh, and we proceed at once to consider the material points in the evidence developed on the trial below.

In the town of Water Valley, where the injuries complained of by the appellee were received, there are four parallel tracks of the appellant's railway. The one lying farthest west and near the depot is known as the house track the one next is the main line track; the third is called caboose track, while the fourth and most easterly is styled the office track. Cemetery street, one of the most frequented thoroughfares in the town, crosses these four tracks at a right-angle just north of the depot. The caboose track connects with the main track by a switch, at a distance variously stated to be thirty-five, forty and fifty yards south of Cemetery street, and, extending beyond the main track, connects caboose track with house track also. Beyond these switch junctions, the tracks swerve in a considerable curve to the east, so that the view of main track would be wholly cut off by a train on caboose track whose end lay on the switch connecting the two tracks. In other words, a person on the main line looking southward down the track, would see only from thirty-five to fifty yards if the tail of a train on caboose track lay on the switch across the main track. At the point where the injury occurred, the surface of the ground was level, and the public was accustomed to walk over it generally. The injury was inflicted by the movement of a switch-engine used to move cars in the yards of the railway company and in the making up of trains. The engine ran, day and night, over all the tracks, as occasion required, and was accustomed to ring its bell or blow its whistle in running over Cemetery street crossing, the belief prevailing that the statute so required. The switch-engine was pushing two cars in front of it, one a flat and the other a box, and neither the engineer nor fireman could see a...