Illinois Central Railroad Co. v. Guess

• Decision Date: 05 January 1897
• Citation: 74 Miss. 170,21 So. 50
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD CO. v. WILLIAM GUESS

21 So. 50

74 Miss. 170

ILLINOIS CENTRAL RAILROAD CO. v. WILLIAM GUESS

Supreme Court of Mississippi

January 5, 1897

October 1896

FROM the circuit court of Lafayette county HON. EUGENE JOHNSON Judge.

The facts are stated in the opinion of the court.

Case reversed and remanded.

Mayes § Harris, for appellant.

We rely for a reversal of the case upon the testimony of the plaintiff himself, who was the only witness introduced in his behalf on the trial of the cause, our contention being that conceding that the fireman was incompetent, conceding that the engine did not have air brakes, and conceding that there were no lights at Pickens, still plaintiff shows by his own testimony that his injury was caused by his positive disobedience of a plain and well-established rule of the company in force at the time, and that by the observance of this known rule he could have avoided injury.

Further we contend that the very facts of which the plaintiff complains as being negligent acts on the part of the company were each and every one of them fully known to him at the time, and were additional reasons why he should have observed more particularly the rule, the disobedience of which by him caused his injury.

At the time of the accident plaintiff was on the lookout in order to shut off steam. He saw no light. He knew that the absence of a light was a danger signal, and meant to stop. He knew the rules of the company; was required to study them. He says: "I suppose if the light had been burning bright I could have seen it a quarter of a mile. If I could not see the light, if it was imperfect, I knew that the rules required me to stop." The track was perfectly straight for a mile and a quarter south of Pickens, and he saw no light. He did not stop, or try to stop; did not have his engine under control; took no sort of precaution until he was in one car's length, or thirty feet, of the end of the switch, at which time he saw that the switch staff was so turned as to display a red signal, which meant danger. We insist that public policy requires a strict observance of rules as to danger signals by engineers in charge of trains, and they cannot be excused for overlooking them.

For the plainest reasons we say the judgment of the court below should be reversed. We deem it unnecessary to cite authorities. The rule as to contributory negligence prevails in this state. That it does so prevail is announced at every term of this court, and where the facts plainly show the want of due care on the part of the persons complaining, this court uniformly denies the right of recovery. Vicksburg, etc., Railroad Co. v. McCowan, 62 Miss. 682; Buckner v. Railroad Co., 72 Miss. 873.

W. V. Sullivan, for appellee.

It is submitted in behalf of the appellee, that he had the right, on entering the service of the railroad company, to assume that the rules by which he was to be governed would be observed by the company itself. Rule 1092, page 57 of the record, directed that the company should have a track watchman, whose duty it was to see that the switches were set and locked. Now, the company either had such fireman or it did not. This is a question of fact. Appellee claimed that there was none, and testified to the fact that he had seen none, and made inquiry to ascertain if there was one, and learned that there was none.

Again, it is said that, under rule 891 and rule 771 of the company, it is the duty of the station agent to look after the sidings and furnish the lights. He is in a different department of service, reporting to a different superior, and he failed to discharge his duty, both in looking after the sidings and seeing that the switch was closed, and in seeing that the danger signal was displayed, and, in this event, the company was liable under the provision of the constitution, § 193. It will not do to say that the station agent was employed in the same labor, or department of labor, as the engineer, nor will it do to say that the track watchmen, or anyone engaged in the construction of the track, was in the same department of labor. Each reports to a separate department, as shown by the rules copied in the record.

Again the appellee had the right to assume that this kind of a train, starting out for the purpose of making fast time, carrying perishable freight, was equipped in the proper manner to be handled safely. That was but a duty the company owed to him. One of the necessary equipments of the proper handling of such a train was air brakes, properly connected with the engine, which this train and engine did not have. The cars had the air brake provision, but the engine did not have the connecting pipes. Of this fact he was ignorant until he had left on the trip. In addition to this, it will be remembered that while he was required to handle twenty-nine cars on a fast schedule, only two brakemen were allowed him, which was manifestly insufficient to handle the twenty-nine cars without the assistance of air brakes. So it will not do to say that Guess should have stopped when he saw no light, and that its absence was, in itself, a danger signal, for the simple reason that he did not know, or could not know in the dark, exactly how near he was to Pickens. He had the right to rely upon the company's discharging its duty, and had the right to expect to see the light, either a white or red signal, and the company cannot...