Illinois Cent. R. Co. v. Mann

• Decision Date: 23 February 1925
• Docket Number: 24657
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. MANN. [*]

102 So. 853

137 Miss. 819

ILLINOIS CENT. R. CO. v. MANN. ^[*]

No. 24657

Supreme Court of Mississippi

February 23, 1925

Division B

1. RAILROADS. Whether fireman saw injured person held question for jury.

Where the plaintiff in a personal injury suit testifies that he was at a point on a railroad track at the time of the injury where he would have been seen, if a lookout were maintained and the fireman testifies that he was keeping a lookout at the time, and did not see the injured person, and would have seen him had he been at such point, in sufficient time to stop the train, it is a question for the jury to determine whether the fireman did see him in fact.

2 RAILROADS. Care required to prevent injury to trespasser after discovery in peril.

While a railroad company, in the operation of its trains is not required to keep a lookout for trespassers, and owes them no duty, except not to willfully or wantonly inflict injury upon them after their discovery in a position of peril, still its servants, if they see a trespasser in a position of peril, must do all reasonably possible to prevent the injury after such discovery.

HON. C P. LONG, Judge.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.

Action by Etha Mann, by next friend, against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

May, Sanders & McLaurin, for appellant.

Was the plaintiff entitled to go to the jury on the last clear chance doctrine? If we can establish a negative answer to that question we are entitled to have the case reversed and judgment entered here for appellant.

If the engineer and fireman did not tell the truth they were guilty of a crime in running the train onto the sleeping child after observing his perilous position. In the case of Y. & M. V. R. R. Co. v. Huff, 111 Miss. 491, this court in passing on a similar question said: "In our judgment the engineer in the instant case has met all the requirements of this rule. To hold otherwise would convict him of manslaughter. It is hard to believe that a responsible engineer would gamble with the life of a child of tender years; and that he did not, in this case, is manifest from the undisputed testimony."

If the engineer and fireman told the truth they did not see the plaintiff and as he was a trespasser they owed him no duty except not to wilfully or wantonly injure him if and when they should discover his position of peril on the track.

If the plaintiff told the truth and the engineer and fireman told the truth, the defendant railroad was not liable because they testified that they were not aware of the presence of the plaintiff on the track and they were not legally bound to see him at their peril because they were under no duty to keep a lookout for trespassers.

There is nothing in the record to impeach the testimony of the engineer and fireman. There was not the slightest circumstances shown to warrant the inference that they were not telling the truth, hence it must be assumed that they did tell the truth, and if so there was no liability shown.

There was no liability shown because neither the engineer nor the fireman saw the child and hence there was no duty resting upon them to stop the train. The true rule in such cases is well stated by our court in one of the earlier cases. Ry. Co. v. Williams, 69 Miss, 641. This rule was followed and approved by the court in Y. & M. V. R. R. Co. v. Smith, 111 Miss. 471; Y. & M. V. R. R. Co. v. Huff, 111 Miss. 486.

In the Williams case plaintiff was a seven-year-old girl who had been to visit at a neighbor's, was taken sick with a chill and fever, and returning home along the railroad track was overcome with drowsiness and lay down on the track and went to sleep. As the train approached the engineer saw the child on the track but did not discover that it was a child until too close to stop the train in time to prevent injury.

In the Huff case, supra, a little negro boy four years old strayed on the track of a railroad company and apparently went to sleep and was struck by the train. The engineer testified that he saw the object on the track but did not realize that it was a human being when he first saw it and made no effort to stop his train until he discovered that it was a child; that it was then too late to stop the train in time to prevent the injury. The court concluded in that case that the peremptory instruction requested for the defendant should have been granted and accordingly entered judgment for the appellant.

The appellant questions the presence of the appellee asleep on the track, but if it be conceded that he was, there is no liability because the employees in charge of the operation of the train did not see him in his perilous position and hence owed him no duty to stop the train and relies on the Williams case, the Huff case and the Smith case, supra.

W. C. Sweat, for appellee.

Etha Mann is a little boy who was between seven and eight years of age at the time the injury, which is complained of, occurred. The proof, as shown by the citizens of the town, is that, ever since the railroad had been built, some thirty-five or forty people per day had been going along this track, crossing in this path, and going up and down the path on the east side of the track where the plaintiff was lying. They further show that, for years, it had been the custom of children to graze their cattle along this track, without any objection from the railroad company so far as the record shows.

It is shown conclusively by the testimony that the plaintiff received his injuries by being struck by one of the defendant's trains in the town of Belmont. Practically ever since the railroad had been built, boys and girls had been daily grazing their cows along the right-of-way at this point, and there was no protest from the railroad company so far as the record shows. It, therefore, became the duty of the employees in charge of the train to keep a look-out at this point for parties who might be on the track. I. C. R. R. Co. v. Dillon, et al., 111 Miss. 520, 71 So. 809; Allen v. Y. & M. V. R. R. Co., 71 So. 386.

If the boy was in the position in which he was lying, as found by the jury, the engineer in charge of the train, if he was looking ahead, as he testified he was, should have seen the plaintiff in a position of peril; and, if he failed to do so, he was guilty of gross negligence for which the railroad company will be liable for his injury. A. & V. R. R. v. Kelly, 126 Miss. 276, 88 So. 707; Jamison v. I. C., 63 Miss. 33.

Since the jury by its verdict adopted the plaintiff's testimony and theory as to his position, then he had a right to believe that the employees in charge of the train either recklessly overlooked and failed to see the plaintiff in a position of peril, when with ordinary care, they should have seen him; or, that they did see the plaintiff in a position of peril in time to have stopped the train and wilfully failed to do so.

It is well settled by this court that the railroad company owes no duty to a trespasser, except to refrain from wilfully injuring him; but it is equally well settled by this court that the railroad company must not wilfully or wantonly injure a person on its track. These two principles work together, and are in harmony, and they are well stated by the court in the case of Railroad Company v. Harrison, 105 Miss. 18. See, also, R. R. Co. v. Hawkins, 82 Miss. 209, 34 So. 323; Harrison v. R. R. Co., 93 Miss. 40, 46 So. 408; Fullers v. I. C. R. R. Co., 100 Miss. 705, 56 So. 783.

Considering plaintiff's injuries, the verdict is exceedingly small; and, conceding that plaintiff was guilty of contributory negligence, if a child of his years could be guilty of contributory negligence, under our statute this does not bar recovery.

No error was committed by the court below.

May, Sanders & McLaurin, in reply, for appellant.

It is argued the engineer was put on notice that some person was likely to be at this point, and therefore, was under duty to be on the lookout and was guilty of negligence if he failed to look and see the appellee; and it is contended that the engineer did not keep a lookout if he failed to see the appellee. Counsel cites to support his contention under this head, the case of I. C. R. R. Co. v. Dillon, 111 Miss. 520, and Allen v. Y. & M. V. R. R. Co., 71 So. 386. There is not the slightest analogy between the Dillon case and the case at bar. If the engineer was under duty to keep a lookout for pedestrians, or persons on the track, because some thirty-five or forty persons passed along that track every twenty-four hours, then it follows that there could be no such thing as a trespasser on a railroad track in Mississippi.

The case of Allen v. Y. & M. V. R. R. Co., supra, is equally dissimilar. In that case the plaintiff was injured because of the alleged negligent maintenance of a step which was part of a passageway leading into and across the railroad yards in the city of Vicksburg. The plaintiff was by this condition invited to use the steps and was injured in so doing by reason of a defective step which the railroad company negligently permitted to exist.

It is confidently submitted that nothing in the testimony will support the contention that the appellee was an invitee, or that the engineer was under any duty to keep a lookout for him and the cases relied upon do not support the appellee's...