Illinois Central Railroad Co. v. Dillon

• Decision Date: 22 May 1916
• Docket Number: 17957
• Citation: 71 So. 809,111 Miss. 520
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. DILLON ET AL

71 So. 809

111 Miss. 520

ILLINOIS CENTRAL RAILROAD COMPANY v. DILLON ET AL

No. 17957

Supreme Court of Mississippi

May 22, 1916

APPEAL from the circuit court of Alcorn county, HON. CLAUDE CLAYTON Judge.

Suit by Mrs. Nannie N. Dillon and others against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Case affirmed.

Mayes Wells, May & Sanders and J. M. Boone, for appellant.

Thomas H. Johnston, for appellees.

OPINION

SYKES, J.

Suit was filed in the circuit court of Alcorn county by the appellees here against the Illinois Central Railroad Company the appellant, for twenty-five thousand dollars damages for the alleged negligent killing of J. D. Dillon, the husband of Mrs. Nannie N. Dillon. A verdict and judgment of the court below in favor of the plaintiffs for five thousand dollars was entered, from which this appeal is prosecuted. The material facts in the case as found by the jury were the following: The defendant railroad company was operating a railroad as a common carrier through the eastern part of the city of Corinth and within the corporate limits and that the said railroad track involved in this controversy crosses what was once known as Foote street. That about the time the railroad was constructed, by city ordinance, this street was closed. Pedestrians, however, continued to use this old street across the railroad as a crossing, and a plank had been put over a ditch by employees of the railroad company at the point where the pedestrians crossed said railroad. That this crossing was used by one hundred and fifty or two hundred employees of certain factories in going to and coming from their work every morning and every afternoon. That the usual time of crossing in the morning was between six and seven o'clock. That the accident in question occurred in the morning between six and seven o'clock. The railroad track here runs practically north and south, and Foote street crossed the same diagonally in a southeasterly direction. That on the morning of the accident which resulted in the death of the husband of appellee, J. D. Dillon, the deceased, was going to his work, proceeding along Foote street until he reached a coal chute which was on the west side of the railroad track following the footpath used by pedestrians across said railroad track. The testimony shows that on account of a coal chute and certain houses the view of the deceased as well as that of the train crew was obstructed until the deceased came from under the coal chute and was within about six feet of the track, at which place he could see and be seen. That on the day in question, apparently without looking or listening, he walked upon the railroad track and was struck by a switch engine of the railroad company which was backing on said track at a rate of speed variously estimated from twenty to forty miles an hour, and was instantly killed. The testimony of the plaintiffs' witnesses was that they heard no bell ringing nor whistle blown by the engineer. The testimony of the engineer and fireman was to the effect that the fireman was ringing the bell, but was silent as to whether or not any sort of whistle was sounded for this crossing. It is the theory of the appellant that the deceased was at best a bare licensee to whom the railroad company owed only the duty of not willfully or wantonly injuring or killing him; further, that they were under no obligation to be on the lookout for him on the track, and were under no statutory or common-law obligation to sound any...