Illinois Central Railroad Co. v. McLeod

Decision Date14 January 1901
Citation29 So. 76,78 Miss. 334
CourtMississippi Supreme Court
PartiesILLINOIS CENTRAL RAILROAD CO. v. ELIZABETH A. MCLEOD ET AL

October 1900

FROM the circuit court, second district, of Yalobusha county. HON Z. M. STEPHENS, Judge.

Mrs McLeod, the widow, and Alexander R. McLeod, the son of Rufus McLeod, deceased, the appellees, were the plaintiffs in the court below; the railroad company was defendant there. The suit was for the death of Rufus McLeod. From a judgment for $ 4,000 in plaintiffs' favor, the defendant appealed to the supreme court. The opinion of the court fully states the facts.

Reversed and remanded.

Mayes &amp Harris and J. M. Dickinson, for appellant.

At the outset of this discussion, we wish it clearly understood that we are not contending in this case for the rule laid down in Thorogood v. Bryan, 8 C. B., 115. We recognize the fact that the rule, as laid down in that case, has been generally denied by the courts of last resort in the United States, although there are cases to be found which approve it. See Prideaux v. Mineral Point, 43 Wis. 513; Houfe v. Fulton, 29 Wis. 296; Artz v. Chicago R. H. Co., 34 Iowa 153; Slater v. Railroad Co., 71 Iowa 209; Lake Shore v. Miller, 25 Mich. 236.

The case which we think clearly announces the true rule, and the one which we think is applicable to this case, is the case of Little v. Hackett, 116 U.S. 366. At page 379 the court says: "There is no distinction in principle, whether the passenger be on a public conveyance like a railway train or an omnibus, or be on a hack hired from a public stand in a street from a driver. Those on a hack do not become responsible for the negligence of the driver if they exercise no control over him further than to indicate the route they wish to travel and the place they wish to go. If he is their agent so that his negligence can he imputed to them to prevent their recovery against the third party, he must be their agent in all other respects so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence in the course of his employment. But as we have already stated, responsibility, cannot, within the recognized rules of law, be fastened upon one who was in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it, no such liability can arise. The parties hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it."

The rule as laid down in Elliott on Railroads, vol. 3, par. 1174, is as follows: "The general rule is that the negligence of a driver of a vehicle with whom the injured party is riding will not be imputed to such injured person. But where persons riding in a vehicle all take part in managing it and the team drawing it, there is reason for holding that all are bound to exercise ordinary care to avoid collisions with railroad trains. Where the driver is the agent or servant of the injured person, it is held that the negligence of the former is attributable to the latter. It is obvious that where the negligence of the person who receives the injury contributes to the injury, he cannot escape the consequences of his own carelessness. Thus where one person riding with another saw the headlight of an approaching engine, it was held that he was guilty of contributory negligence in failing to warn the driver of the vehicle in which he was riding. If the person riding in the vehicle knows the driver is negligent, and he takes no precaution to guard against injury, he cannot recover for injury in such case. The negligence is his own and not simply that of the driver."

The author cites in support of the text the following cases, all of which we have examined, and they fully support the text: Dean v. R. R. Co., 39 Pa. St., 514; Smith v. R. R. Co., 87 Me. 339; Brickell v. R. R. Co., 120 N.Y. 290; Miller v. R. R. Co., 129 Ind. 97; Hoag v. R. R. Co., 111 N.Y. 199; R. R. Co. v. Howard, 124 Ind. 280; Township v. Anderson, 114 Pa. St., 643.

The rule seems to be well settled that a party riding in a hired conveyance with full knowledge of his surroundings, with opportunity to protect himself, must take precautions to do so, and he is not relieved of the ordinary rule applying to persons approaching railroad crossings simply by the fact that he is riding in a hired conveyance. He must do nothing which would interfere with the conduct of the driver, and it is his duty to interpose and save himself, if he sees or has reason to know that he is going into a place of danger, and he must look out for himself where he can and where the opportunities for knowing and appreciating the situation are as much with him as with the driver of the vehicle.

Alabama, etc., Ry. Co. v. Davis, 69 Miss. 444, is a case in which this court elaborately discusses the question as to whether the injured party who was being driven in the buggy was herself guilty of negligence. The court held that she had done all that could be reasonably required of her under the circumstances. At the same time the court recognized the fact that a party cannot quietly remain in a vehicle and close his eyes to surrounding danger and recover for an injury simply because he was being driven by another.

The rule as to the duty of persons approaching a railroad crossing has been repeatedly announced by this court and is settled beyond any controversy, and, tested by these rules, there can be no question as to the negligence of both the driver and of the deceased in the case at bar. In fact, under the circumstances as shown by the record in this case, the deceased was the most reprehensible of the two. Not only did he fail to discharge the duty which was incumbent upon him to look and listen for approaching trains, but he actually interfered with and prevented the driver from the discharge of this duty for him, if he could impose the duty upon the driver. Murdock v. Yazoo, etc., R. R. Co., 77 Miss. 487; Jobe v. Memphis, etc., R. R. Co., 71 Miss. 734; Winterton v. Illinois, etc., R. R. Co., 73 Miss. 831; 1 Thompson on Neg., 326.

Monroe McClurg, for appellee.

It is not contended on the part of the appellant that the negligence of the driver is to be attributed to the deceased, except in so far as the deceased may have materially interfered with him in the discharge of his duties. Then, so far as the conduct of the driver is concerned, it must be pruned out of the record and lost sight of entirely unless it be shown that McLeod interfered with him to a degree exceeding reasonable care and prudence, and of course the burden is upon the appellant to establish this fact. But two matters are alleged as constituting this unreasonable interference, to wit, that McLeod gave the driver three drinks of whisky and that he was in conversation with him and diverting his attention from his duties at the crucial moment. Failing to establish either of these propositions, the negligence of the driver necessarily is unimportant.

It is perfectly in accord with good reason so say that McLeod believed all the way along the three hundred yards traveled that the driver knew his business and would take all necessary precautions against a collision with the train; that he believed at "the turn" he would stop, and found when it was too late that he could do nothing to save himself; that he believed that the team was not afraid of a moving train; that, like all other men, he knew many teams of the character of this one would go up near a moving train and stand quietly until it passed, and it is not improbable but that this one would have done so but for the unnecessary blast of the whistle within thirty feet of it, if not "right at the crossing" or "right on the crossing." He had a right to believe each and all of these things, and it must be presumed that he did believe something to this effect and do all things else that might be expected of a reasonably prudent man under similar circumstances to save himself from injury, until the testimony becomes strong enough to overcome such presumption.

In addition to this presumption of law, which it is respectfully submitted has not been overcome by the evidence, and which must be overcome before it avails the appellant anything, it is submitted that, if placed on even ground with appellant upon this proposition, the facts developed by the record would carry the balance in favor of the appellee.

The testimony as to blowing of whistle, as...

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