Illinois Cent. Railroad Co. v. Sumrall

• Decision Date: 07 March 1910
• Docket Number: 14,372
• Citation: 51 So. 545,96 Miss. 860
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. ALICE W. SUMRALL

51 So. 545

96 Miss. 860

ILLINOIS CENTRAL RAILROAD COMPANY v. ALICE W. SUMRALL

No. 14,372

Supreme Court of Mississippi

March 7, 1910

FROM the circuit court of Copiah county, HON. WILEY H. POTTER Judge.

Mrs Sumrall, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Mayes &amp Longstreet, and R. N. & H. B. Miller, for appellant.

[The reporter has been unable to find the brief of counsel for appellant in this case, hence no synopsis of it is given.]

J. S Sexton and N.W. Sumrall, for appellee.

It is not disputed that Sumrall was killed "by the running of the locomotive of the defendant company," and the prima facie case under the statute having been made out, it devolved upon the defendant company to exonerate itself, and as stated by this court in the case of New Orleans, etc., R. Co. v. Brooks, 85 Miss. 269, "to overcome this statutory presumption it devolved upon the appellant to exculpate itself by establishing to the satisfaction of the jury such circumstances of excuse as would relieve it from liability."

"It is the rule that questions of contributory negligence and proximate cause must be left to the jury unless they are perfectly obvious to the court." Hopson v. Kansas City, etc., R. Co., 87 Miss. 796.

In Stevens v. Yazoo, etc., R. Co., 81 Miss. (a case in many respects like the case at bar) it is said "if the train which did the damage to this man had been going at the lawful rate of speed of six miles an hour it is plain that the catastrophe would not have occurred because by the time the train could have gotten to him he would have been at an entirely safe place."

In the case of Bell v. Southern Ry. Co., 87 Miss. 234, 30 So. 821, Chief Justice WHITFIELD, speaking for the court, said: "So many questions are integrated usually into the solution of the question of negligence--it is so necessary to examine all the circumstances making up the situation in each case--that it must be a rare case of negligence that the court will take from a jury." "A judge at his desk, whose duties seclude him very much, and train him to habits of careful deliberation, it not nearly so competent to determine what a man of the usual and ordinary prudence might do under given circumstances as a jury from the body of the people. Contributory negligence as a defense, must be quite obvious to all reasonable minds to warrant its announcement as matter of law." Stevens v. Yazoo, etc., R. Co., 81 Miss. 206.

In the case of Louisville, etc., R. Co. v. Crominarity, 86 Miss. 464, this court said "What constitutes negligence must depend always upon the surrounding conditions and the attendant circumstances of the particular instance. No hard and fast rule of action can be prescribed which will make the same course of conduct under any and all circumstances either wise or unwise, cautious or reckless. * * * The true rule is that it is incumbent upon the traveler to use that degree of care and caution which is rendered necessary by a reasonable regard for his safety under the peculiar circumstances and conditions by which he is at the time confronted." Such questions "must generally though not invariably be a question of fact, and being a question of fact it should be submitted to the jury under proper instructions for their decision."

In the case of Yazoo, etc., R. Co. v. Rivers, 93 Miss. 565, this court in speaking of the province of the jury says of that body "the twelve men who sit in the jury box are presumed to be men of common sense, honest, and desirous only of trying the case according to the law and the evidence."

Having noticed that Sumrall was killed by the running of the defendant's locomotive and that the only possible escape from liability on account therefor was that of his contributory negligence and that this question is peculiarly one for the jury, I shall now proceed to call the attention of the court to the immediate facts surrounding the killing and see whether or not the defendant corporation exculpated itself and whether Sumrall was really guilty of contributory negligence.

It has occurred to me that, in discussing matters of this kind, those of us who are in the habit of excusing our clients from violation of law by referring to its violation by others in the shape of contributory negligence, overlook some very plain elementary things which cut a very large figure in human affairs. There is not only a legal presumption that the railroad was negligent in producing Sumrall's death in the manner in which it was produced, but there is a counter presumption in his favor founded on nothing less than the love of life itself that he did everything which the law required of him, because it is well known that in the absence of evidence to the contrary there is a presumption that he did everything necessary for his protection in the premises.

In the case of Baltimore, etc., R. Co. v. Landrigan, 191 U.S., the supreme court of the United States, speaking through Justice McKenna, said:

"There was no error in instructing the jury that, in the absence of evidence to the contrary, there was a presumption that the deceased stopped, looked and listened. The law was so declared in Texas & P. R. Co. v. Gentry, 163 U.S. 353, 366. The case was a natural extension of prior cases. The presumption is founded on a law of nature. We know of no more universal instinct than that of self-preservation,--none that so insistently urges to care against injury. It has its motive to exercise in the fear of pain, maiming and death. There are few presumptions based on human feelings or experience that have surer foundation than that expressed in the instruction objected to. But, notwithstanding the incentives to the contrary, men are sometimes inattentive, careless, or reckless of danger.

These the law does not excuse nor does it distinguish between the degrees of negligence."

We...