Illinois Central Railroad Co. v. Armstrong

• Decision Date: 26 October 1908
• Citation: 47 So. 427,93 Miss. 583
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. KATE ARMSTRONG

47 So. 427

93 Miss. 583

ILLINOIS CENTRAL RAILROAD COMPANY v. KATE ARMSTRONG

Supreme Court of Mississippi

October 26, 1908

October 1908

FROM the circuit court of Attala county, HON. J. T. DUNN, Judge.

Mrs Armstrong, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment for $ 1,125 in plaintiff's favor defendant appealed to the supreme court.

Mrs Armstrong was in a buggy holding a small baby in her lap, and the buggy was being driven by her driver; as they approached the railroad crossing on a public street in the town of Kosciusko, about 9 o'clock in the morning, an engine was engaged in switching a box car. They stopped while the engine with the box car passed the crossing going east, with the bell ringing. It went a short distance only, about fifty yards, passing from plaintiff's view behind some box cars standing on a side track, when it stopped and the engineer reversed the engine and started backwards, without ringing the bell or sounding the whistle, as required by statute. Just after the locomotive passed going east plaintiff's horses were started forward across the railroad track. The engineer, on seeing that plaintiff was attempting to cross the track, stopped his engine on its backward trip, before reaching the crossing; but the team became frightened, turned westward down the track in an opposite direction from the approaching engine, and ran away, throwing the driver from the buggy. Plaintiff held to a rod on the seat and stayed in the buggy, holding her baby in her lap, until the team was stopped. Plaintiff received severe bruises and other injuries, none of which were serious. On the trial the driver testified that on approaching the track he stopped to allow the east-bound engine, with the bell ringing, to pass, and that when the bell stopped ringing, and the engine stopped he started across the track, not being able to see the engine on account of box cars on an intervening side track; that he had no way of knowing that the engine was approaching from the east until he had gotten on the track, when he saw it approaching without ringing the bell or sounding the whistle and that the team became frightened at escaping steam from the approaching engine and whirled toward the west and ran down the track.

The court granted plaintiff an instruction authorizing the jury to award punitive damages, and refused defendant an instruction to the effect that the jury could not award such damages.

The statute, Code 1906, § 4045, is as follows:

"4045 (3547)--Bell and Whistle, When to Give Alarm, etc.--Every railroad company shall cause each locomotive engine run by it to be provided with a bell of at least thirty pounds weight, or a steam whistle which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or street; and the bell shall be kept ringing, or the whistle shall be kept blowing, until the engine has stopped or crosses the highway or street."

Judgment affirmed.

Mayes & Longstreet, for appellant.

As there was no actual collision, the statute which controls the case of persons injured by the running of a train, has no application, and the burden rests upon the plaintiff of showing both the negligence of the defendant, and also the fact that such negligence was the proximate cause of the injury received.

It is to be observed that in fact on its return trip the engine did not cross the street; it did not get on the street. What caused the injury was the misconduct of the team in running away at the bare sight of the engine, with such escape of steam as was usual and ordinary in the operation of an engine.

If the engineer was technically in fault in not ringing the bell as and when he started, still such omission was not the proximate cause of the injury. The engine was under perfect control; it never got to the crossing, for the protection of which the bell is required to be rung. The whole thing was caused by the frightened team running away from the sight of a merely moving engine with the usual escaping steam.

If the team had quietly gone...