Illinois Central Railroad Company v. Emmerson

• Decision Date: 02 December 1907
• Citation: 91 Miss. 230,44 So. 928
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. HARRIETT D. EMMERSON

44 So. 928

91 Miss. 230

ILLINOIS CENTRAL RAILROAD COMPANY v. HARRIETT D. EMMERSON

Supreme Court of Mississippi

December 2, 1907

October 1907

FROM the circuit court of Lincoln county, HON. MOYSE H. WILKINSON Judge.

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

Appellee sued the appellant company to recover damages for her husband's death resulting from injuries received while he was the conductor of a wrecking train of the company. On the day of the injury two locomotives had been derailed, and the trainmaster wired decedent to proceed to the point and pull tho two engines back upon the track. When decedent reached the derailed engines he hitched the end of the caboose of his train to the tender of one of them, using a chain, so fastening it as to leave about eight feet of slack between the caboose and the tender. Getting the two engines and tenders back upon the track, and having them attached to his caboose as stated, he proceeded to pull them northward along the track, his tender being in advance, followed by his engine backing and his caboose, with the two disabled engines and tenders attached to the caboose as stated. In order to avoid a collision, the exigencies of the situation requiring it, Emmerson's engineer, without warning, suddenly stopped his engine, causing the disabled engines, carried forward by their own momentum, to collide with the caboose and Emmerson, being upon its rear platform, was so injured that he shortly afterward died.

Upon a first trial the appellee recovered a judgment, but the railroad company appealed to the supreme court, obtained its reversal and the grant of a new trial. Illinois Central Railroad Company v. Emmerson, 88 Miss. 598; 40 So. 818. The facts are stated in said reports.

On the second trial of the cause, after the reversal, plaintiff by leave of court amended her declaration charging that Emmerson's train was suddenly and negligently stopped by its engineer by reason of the negligent obstruction of the track by another train of cars under control of one Ansley, a conductor of the railroad company, thus basing the liability of the company upon the alleged negligence of a servant of the company upon another train of cars than the one on which decedent was employed. On the trial appellee sought, by the testimony of one Jenkins, a locomotive engineer, to show that the method employed by Emmerson in hauling the disabled engines with a chain of length as shown in evidence and stated above, was proper under the circumstances. There was a verdict for the appellee in the sum of $ 20,000.

One Jenkins testified for plaintiff that he was in the employ of the Brookhaven & Pearl River Railroad Company, and that he had been an engineer for twenty-seven and a half years (twenty-one of which were with the Illinois Central and four years with the Iron Mountain) and is still a locomotive engineer; that the ordinary equipment of a caboose of the Illinois Central is a chain to be used in case of the pulling out of a draw head, and frogs for replacing cars derailed.

Reversed and remanded.

Mayes & Longstreet, and J. M. Dickinson, for appellant.

In the course of the first trial, and after plaintiff introduced her evidence in chief, she moved to amend her declaration by inserting an averment that Emmerson's train was "suddenly and negligently stopped by its engineer by reason of the negligent obstruction of the track by another train of cars," etc. The court below allowed the amendment over the defendant's objection. Defendant then moved for a withdrawal and continuance, on the ground of surprise, which the court granted. Thereupon the plaintiff voluntarily withdrew her amendment, and proceeded with the case. She was awarded a judgment, from which the former appeal was taken. On the hearing on appeal, as reported in Illinois Central R. R. Co. v. Emmerson, 88 Miss. 598; 40 So. 818, this court said: "We are clearly of the opinion that Emmerson brought his death upon himself by his own contributory negligence in the management of his train."

When the court below again took jurisdiction of the case on the remand consequent on the reversal of the first judgment, the plaintiff amended her original declaration so as to incorporate into it the identical amendment which she was allowed to make on the first trial, and which she withdrew as above stated. The result of this amendment was to incorporate into the declaration the averment that Emmerson's train was suddenly and negligently stopped by its engineer by reason of the negligent obstruction of the track by another train of cars of defendant's, namely, Ansley's train. The declaration having been so amended, the trial proceeded, and the outcome was a judgment against the defendant from which this appeal is taken.

A careful examination of this record will show that the plaintiff on the second appeal made out by the evidence of the eyewitness, exactly the same case that was made out on the first trial, in which the judgment was reversed by this court on the ground that the undisputed evidence showed contributory negligence. The new trial has not altered this feature of the case in the slightest. The amendment of the declaration was useless as a legal proposition, because the averments of the original declaration were broad enough to include the matter which the amendment was intended to cover; and if the court will consult the transcript on the first appeal it will see that the same identical evidence about the alleged negligence on the part of Ansley's train in obstructing the track and causing thereby the sudden stopping of Emmerson's train, was given as fully and by the same witnesses and in the same way as they are proved here. The only change was the swapping of one opinion witness for another and kinder.

Moreover, when all is said and done, under the view of the case which this court has announced, the negligence on the part of Ansley's train, if it occurred, is immaterial, for the reason that if it were negligence at all, it was negligence of the railroad company, and is nothing but mere negligence; and the defense of contributory negligence on the part of Emmerson is just as directly and clearly applicable to that source of negligence as it is to any other source of the company's negligence.

On the former trial this court held that the case as made showed that the plaintiff could not recover because of the great negligence of Emmerson in the making up of the train of which he was conductor. And on this controlling point, as announced in the previous decision of this court, and under the settled law of the case, the same conclusion must be reached for the reason that exactly the same showing is made as to contributory negligence on the part of Emmerson. It is alleged by plaintiff in her amended declaration, that Ansley's train negligently obstructed the track, but it is not proved that there was any such negligence. The specific charge is against the engineer of that train in his releasing the air, and allowing the slack of the train to run out, thereby causing his rear car to kick back about three feet over the track on which Emmerson's train was moving. This was not such an act as the court, under the circumstances, can take cognizance of as negligent. It was rather one...