Louisville & N.R. Co. v. Thomas

• Decision Date: 26 March 1906
• Citation: 87 Miss. 600,40 So. 257
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY v. IRENE THOMAS
• Court: Mississippi Supreme Court

40 So. 257

87 Miss. 600

LOUISVILLE & NASHVILLE RAILROAD COMPANY v. IRENE THOMAS

Supreme Court of Mississippi

March 26, 1906

FROM the circuit court of Jackson county, HON. WILLIAM T MCDONALD, Judge.

Mrs Thomas, the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in favor of the plaintiff, for the sum of $ 999, the defendant appealed to the supreme court.

This suit was instituted by appellee for the death of her son, a brakeman in the employ of appellant. At the time of the accident, the train consisted of a number of box cars, and it was the duty of the deceased to apply the brakes on top of these cars. As the train approached the station of West Pascagoula and began to slow down for the station, the engineer having given the signal for brakes, the deceased climbed on top of one of the cars to apply them, and while so engaged the train began to cross the river, over which there was a steel bridge, so constructed that the overhead beams were not exceeding five feet above the tops of some of the box cars. One of these overhead beams is supposed to have struck the deceased on the head and to have knocked him from the train and killed him. There were no eyewitnesses to the accident, but several persons testified that they saw decedent climb on top of one of the cars, and one witness testified that he saw decedent standing at the brake and suddenly disappear when the train reached the bridge. The decedent was picked up at the end of the bridge, near the last overhead beam, and the nature of the wound in his head showed that he had received a severe blow.

The plaintiff contended, in the court below, that the bridge was improperly constructed and was unsafe and dangerous, and that the decedent, being in the discharge of his duties at the time on top of the car, was killed because of coming in contact with the overhead beam. The defendant contended that the bridge was properly constructed, and that the decedent was guilty of contributory negligence-- negligence which contributed to and caused the injury resulting in his death.

Affirmed.

Gregory L. Smith, for appellant.

In a suit by a mother for the death of a son that occurred prior to the act of March 11, 1904 (Laws 1904, p. 124), is it necessary to allege that the deceased was a legitimate child?

The cause of action in this case is entirely statutory, and prior to the act of March 11, 1904, existed only in favor of a mother for the death of a legitimate child. Illinois etc., R. R. Co. v. Johnson, 77 Miss. 727 (S.C., 28 So 753) ; Alabama, etc., Ry. Co. v. Williams, 78 Miss. 209 (S.C., 28 So. 853).

The right being statutory, every essential element thereof should be alleged. It is a fundamental rule of pleading that every fact necessary to give a right of action must appear in the declaration. 6 Ency. Pl. & Pr., 249.

The declaration simply states that the decedent was a son of the plaintiff, and there is nothing in the declaration from which a presumption of legitimacy can arise. The pleadings are always construed strongly against the pleader. Clary v. Lowry, 51 Miss. 577; Powell v. Stower, 47 Miss. 577; McCerren v. Railroad Co., 73 Miss. 1013 (18 So. 420).

There was no causal connection between the company's carelessness in the construction of the bridge and the death of Willis Thomas. The proximate cause of his death was the act of the engineer--his fellow-servant--in calling him to brakes at an improper time; and, conceding that the maintenance of the overhead structure was negligence, it is not actionable in this case, because not shown to be the proximate cause of the injury complained of. To be actionable there must be negligence and resulting injury. 21 Am. & Eng. Ency. Law, 495.

Is it negligence per se to maintain a low bridge--that is, a bridge under which an employe cannot pass while standing upon the top of a car? In a case almost exactly like the one at bar the supreme court of Maryland said that "no negligence can be imputed to the company because the struts of the bridge were not high enough to allow an employe to pass under them while standing upright on top of the cars." Baltimore, etc., R. R. Co. v. Struke, 51 Md. 47 (S.C., 34 Am. St. Rep., 291); Pittsburg, etc., R. R. Co. v. Sentmeyer, 92 Pa. 276 (S.C., 37 Am. St. Rep., 684); Baylor v. Delaware, etc., R. R. Co., 40 N. J., 23.

The fact that the maintenance of a low bridge is not actionable negligence in itself is recognized by Code 1892, § 3553, which provides that warning strings shall be suspended from structures erected near the approaches to said bridge, and that a failure to provide such warning strings shall make the company liable for death caused by such bridge beam or other overhanging object; in other words, the law recognizes the right to maintain such a bridge, if the warning strings are properly provided near the approaches thereto.

Neville & Wilbourn, for appellee.

"A jury is always warranted in finding a railroad company culpably negligent whenever a dangerous object is not sufficiently elevated above its track to clear the heads of trainmen while they are standing or walking in an erect posture on top of freight cars." Labatt's Master and Servant, 182, 187, 189.

For a vigorous denunciation of overhead bridges, see ...