Illinois Cent. R. Co. v. Cole

• Decision Date: 09 April 1917
• Docket Number: 18925
• Citation: 113 Miss. 896,74 So. 766
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. COLE

74 So. 766

113 Miss. 896

ILLINOIS CENT. R. CO. v. COLE

No. 18925

Supreme Court of Mississippi

April 9, 1917

APPEAL from the circuit court of Holmes county, HON. FRANK E EVERETT, Judge.

Suit by Harry T. Cole against the Illinois Central Railroad Company and another. From a judgment for plaintiff, defendant, the Illinois Central Railroad Company appeals.

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

Judgment affirmed.

R. V Fletcher and Mayes & Mayes, for appellant.

Darbour & Henry, for appellee.

ETHRIDGE. J. STEVENS, J., dissents.

OPINION

ETHRIDGE. J.

Harry T. Cole sued the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company, as partners, in the circuit court of Holmes county, for personal injuries, and was awarded a judgment for seven thousand, five hundred dollars, from which judgment the railroad company appealed. This is a companion case to the Yazoo & Mississippi Valley Railroad Co. v. Messina, 109 Miss. 143, 67 So. 963, 111 Miss. 884, 72 So. 779. The appellee in this case being injured in the same accident that Messina was injured in in the case referred to, the statement of facts by Judge COOK in the Messina Case will render the full statement of the facts unnecessary in the present case. Cole had prior to the injury been working in New Orleans, La., and had beaten his way from New Orleans, La., to Canton, Miss., on one of the trains of appellant, the Illinois Central Railroad Company, and when he reached Canton he struck up with Messina and other parties, and, learning from them that they were going to Memphis, Tenn., decided to go along also, and, according to the testimony of the plaintiffs, procured the consent of the engineer in charge of the train upon which the injury occurred to ride on the tender of the engine on said trip. Prior to leaving Canton, Miss., the engineer received a telegram which informed him that there was "more or less rain all over the district tonight." On reaching Durant, Miss., the engineer received the following telegram:

"No. 5 reports water high between Beatty and Sawyer; have had very hard rains in past three hours; water over the track but no damage reported, at Sawyer."

Durant was the last stop of this particular train until Winona would be reached, and the injury happened between Durant and Winona by reason of the washout over a stream about three miles south of Winona near a place called Foltz. The testimony for the appellee showed that at the time of the injury the train was running at about fifty miles per hour, different witnesses placing it at from fifty to fifty-five miles per hour, while the engineer testified that they were running about thirty-five miles per hour. About two hundred and fifty yards south of the trestle where the injury occurred there was a curve in the track and the trestle could not be seen from a northbound train until the curve was rounded. The engineer testified that he could not have stopped his train in less than one hundred and fifty yards, and that he was using acetylene headlight, which was next in power and efficiency to an electric headlight, and that with this light he could only see a short distance ahead, about twenty-five or thirty thirty yards. The engineer had been running between Canton and Memphis about seventeen years, and had twenty-seven years' experience as an engineer. The plaintiff was injured by having his foot and leg crushed so that an amputation was necessary, and was at the time of the trial twenty-three years of age, and had prior to the injury been working as a pressman in New Orleans, at which place his wages were two dollars and thirty cent per day, and that he spent four hundred dollars in having his limb amputated and medical and surgical attention on account of the injury. The physicians whose testimony was excluded in the Messina Case were introduced and testified without objection in this case on behalf of the defendants. They testified that they amputated the leg of the plaintiff, and as to their treatment of his injuries.

For a further statement of the facts I refer to Railroad Co. v. Messina, 109 Miss. 143, 67 So. 963, 964.

The first assignment presents the question as to whether or not plaintiff in this case could recover for the injuries because riding in violation of the Hepburn Act, forbidding persons (under penalty) from riding upon a free pass, and it is contended that, as the plaintiff was a trespasser and was injured on the train on which he was riding without having paid fare, he would be barred of a recovery because of said fact (the supreme court of the United States having decided in the Messina Case on appeal of that case to the supreme court of the United States in Illinois v. Messina, 36 S.Ct. 368, 60 L.Ed. 709, 240 U.S. 395, that the Hepburn Act forbade persons riding in the manner and under the circumstances in which the plaintiff and the others were riding when injured), and that his injury flowed from his own wrong and for that reason he could not recover. We think the announcement of the Messina Case would be a sufficient answer to this contention, but we think the United States supreme court itself has passed upon this question adversely to the appellant in the case of Southern Pacific R. R. Co. v. Schuyler, 227 U.S. 601, at page 612, 33 S.Ct. 277, at page 280, 57 L.Ed. 662, at page 669 (43 L. R. A. [N. S.] 901). The supreme court, in passing upon this question, said:

"But the act itself declares what penalty shall be imposed for a violation of its prohibition: 'Any common carrier violating...