Illinois Central Railroad Co. v. Gray

• Citation: 79 So. 812,118 Miss. 612
• Decision Date: 11 November 1918
• Docket Number: 20175
• Court: United States State Supreme Court of Mississippi
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. GRAY ET AL

79 So. 812

118 Miss. 612

ILLINOIS CENTRAL RAILROAD COMPANY v. GRAY ET AL

No. 20175

Supreme Court of Mississippi

November 11, 1918

APPEAL from the circuit court of Montgomery county, HON. H. H RODGERS, Judge.

Suit by Mrs. Ludie Kennedy Gray and others against the Illinois Central Railroad Company. From a judgment for plaintiffs defendant appeals.

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

Judgment affirmed.

Wells May & Sanders and R. V. Fletcher, for appellant.

Wm. C. McLean and Hill & Knox, for appellee.

ETHRIDGE J. COOK, J., dissents.

OPINION

ETHRIDGE, J.

Mrs. Ludie Kennedy Gray and her two children bring suit against the Illinois Central Railroad Company for the death of W. M. Kennedy, who was the former husband of Mrs. Gray and the father of her two children. Kennedy was found on the morning of the 12th day of August, 1914, at the bottom of a dump of the Illinois Central Railroad north of the corporate limits of the town of Duck Hill, and just outside of the corporate limits. Kennedy had one leg broken, his back, arm, and face bruised, and his clothing appeared to have been struck by an engine; there being oil and smut upon the clothing. Kennedy was unconscious when found, but not dead, but died in a few hours after he was found, and was, from the time found until he died, unconscious. Kennedy was seen last before his injury on the night of the 11th of August, between 10 and 11 o'clock. It appeared from the evidence of some of the witnesses that Kennedy was either intoxicated or was under the influence of drugs at the time last seen, and that he started walking down the track of the defendant railroad company. He was found the following morning somewhere near 8 o'clock.

The defendant railroad company had eight trains that passed the place of injury between the time Kennedy was last seen before the injury and the time he was found after the injury. The men in charge of these different trains were placed on the witness stand by the railroad company, but none of them knew anything about the infliction of the injury; that is to say, there is no witness who claims to have seen the injury, or to have known which particular train of the defendant inflicted the injury. The persons in charge of at least three of these trains testified that they had no recollection of the condition under which their trains were operated the night of the injury, and could only say that they passed the place of injury by reason of reports of the operation of the trains filed with the railroad company, and the general statement that they recalled nothing unusual having occurred on the night in question. Under cross-examination these witnesses state that they have no independent recollection, and could not state from recollection the condition and equipment of the train, nor the circumstances which existed in passing through the town of Duck Hill. Some of them state that at the rate trains were usually operated the striking of a man by the engine would not cause such impact against the train as would bring it to their attention, unless they were looking out. In other words, the circumstances surrounding the deceased and the train which struck him at the time of the injury are not disclosed by the record, and the case is governed by section 1985, Code of 1906 (section 1645, Hemingway's Code).

The jury rendered the verdict for the plaintiff for two thousand dollars. A number of questions have been presented us in briefs and on the argument, but in view of the fact that the proof in the case does not disclose the circumstances existing at the time of the injury, the defendant did not meet the burden imposed by section 1985, Code of 1906, and we are not called on in this case to decide the other questions presented. It is suggested in the argument that the decisions of this court construing section 1985, Code of 1906 (section 1645, Hemingway's Code), are in conflict, and we are asked to reconcile and harmonize and explain these decisions in this case....