Illinois Central Railroad Co. v. Cathey

Decision Date16 January 1893
Citation12 So. 253,70 Miss. 332
PartiesILLINOIS CENTRAL RAILROAD CO. v. P. F. CATHEY, ADM'R
CourtMississippi Supreme Court

October 1892

FROM the circuit court of Lafayette county, HON. JAMES T. FANT Judge.

Action of damages by P. F. Cathey, administrator of the estate of his deceased minor son, J. W. Cathey, against the Illinois Central Railroad Company. The declaration alleges that the "said defendant, while operating its freight-cars by the powerful and dangerous agency of steam, within the limits of the city of Canton, Mississippi, a city duly incorporated wilfully and recklessly, with gross and wanton negligence ran its cars over and killed said J. W. Cathey." There was no other allegation as to negligence.

The material facts, as shown by the testimony, are as follows Young Cathey was a minor. He was employed by the defendant, and his duties were those of night switchman in the Canton yard, with which he was familiar. He helped to make up the trains there. About the twentieth of May, 1890, at night, a freight-train was being made up in the yard. Cathey was directed to make the coupling of a coal-car. This he did; but, in doing so, he either fell or was knocked down and injured. The wheels passed over his right leg and left foot. From the injuries received, he died the next morning. No one was near enough to be able to say just how the accident occurred or what caused it. Some of the witnesses testified to having seen him fall, and others heard him cry out; the lantern he had in his hand was seen to go up and then fall suddenly. When he was reached he was lying on his back, with his body outside the track and his legs under the car. He stated to the attending physician that "he fell down between the cars." The injury occurred on a switch or side-track, and plaintiff introduced evidence of various defects about the track, namely: That the rails where the deceased fell were laminated so that iron splinters stuck out from them the size and length of a man's finger, and strong enough to trip a man; that the ties were rotten, and that there was a depression in the track, which caused it to give way several inches as the train passed over; that there were lumps of coal scattered about on the ground between the rails, some of them "as large as a man's two fists," and over which one would be likely to stumble. There was also testimony tending to show there were blood spots near the rail; and it was shown that the left leg of the pants which deceased had on was freshly snagged and torn near the bottom, and on the inside of, and parallel with, the rail at this point there was a man's track. It was shown that one always goes in sidewise to couple cars. There was also evidence tending to show that, before the injury, the attention of the yard-master and road-master of defendant had been called to the defective and dangerous condition of the track at that place. After the injury, the rail at the place where deceased was run over was taken up and replaced with another. The rail which was taken up was not produced at the trial. There were some conflicts in the testimony; but, in view of the opinion of the court, it is not deemed necessary to specify the same, or to set out the evidence more fully.

Plaintiff's second instruction, alluded to in the opinion, is as follows:

"The court charges the jury that, if they believe from the evidence that the road-bed and rail of defendant company at the point of injury was dangerous, and out of repair, and the railroad company was guilty of gross negligence in permitting its road-bed, rails and track to be out of repair, and that the condition of the rails was dangerous at the point of injury, and that these facts were brought to the notice of the railroad company before the accident, and that the company failed to repair its rails and road-bed, and that the death of Cathey was the result of such gross negligence of the company in not repairing its rail and track, and that Cathey was not guilty of contributory negligence, then the jury should find for the plaintiff, and assess his damages at such amount as they may believe from the evidence he is entitled to."

The jury found a verdict in favor of plaintiff for $ 9,000, and judgment was entered thereon. Motion for new trial overruled. Defendant appeals. The opinion contains a further statement of the case.

Reversed and remanded.

Mayes & Harris, for appellant,

1. Discussed the facts at length, contending that there was no proof that the injury complained of was caused by defendant's negligence; that the theory of the deceased being injured by reason of the causes alluded to in the evidence, was based upon pure conjecture, and that, as there was no proof of a causal relation between the injury and the alleged negligence, the verdict was wholly unsupported, and there should have been a peremptory instruction to find for the defendant, citing Short v. Railroad Co., 69 Miss. 848.

2. Granting, for the purpose of argument, that the deceased was killed by reason of defendant's negligence in respect to the things mentioned in the testimony, still it was a proper cause for a peremptory instruction. It was the duty of the yard-master and section-boss to keep the track in order, and these parties were fellow-servants with the deceased. Lagrone v. Railroad Co., 67 Miss. 592. The accident occurred in May, 1890, hence, the provisions of the new constitution as to this have no application.

3. Plaintiff's second instruction should not have been given. It lays down a rule of recovery which is at variance with the pleadings. The declaration puts the case on wilful and wanton negligence in running cars, while the evidence and this instruction put it wholly on a different ground--that is, in not keeping the track in order. On this point, see authorities referred to in George's Miss. Dig., p. 423, § 54. The instruction is also erroneous in charging that, if the jury found for plaintiff, they "might assess his damages at such amount as they may believe from the evidence he is entitled to." The court should have fixed the elements of damages to be considered. This was not an action under § 1510 of the code, for the death of the deceased; and his death is not an element in the computation. Railroad Co. v. Phillips, 64 Miss. 693.

A. H. Whitfield, for appellee,

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