Louisville, New Orleans & Texas Ry. Co. v. Cooper

• Decision Date: 16 February 1891
• Citation: 8 So. 747,68 Miss. 368
• Parties: LOUISVILLE, NEW ORLEANS & TEXAS RY. CO. v. LYDIA A. COOPER
• Court: Mississippi Supreme Court

8 So. 747

68 Miss. 368

LOUISVILLE, NEW ORLEANS & TEXAS RY. CO. v. LYDIA A. COOPER

Supreme Court of Mississippi

February 16, 1891

October 1890

FROM the circuit court of Coahoma county, HON. R. W. WILLIAMSON Judge.

Appellee with two other women, was walking upon the track of appellant's railroad and reached a trestle 212 1/2 feet long. She knew it was after the time for the passing of the passenger train and supposed it had passed, but admitted that she knew it was sometimes behind time. After conferring as to the risk, the three started to cross the trestle, but when about half across they discovered that the train was approaching and was very near them.

At its highest point the trestle was about twelve feet high, and near the ends not exceeding three feet high. The engineer testified that when he first saw the women on the track the engine was 250 or 300 yards from the trestle. Further facts are stated in the opinion.

Verdict and judgment for plaintiff for $ 2500. Motion for new trial overruled, and defendant appeals.

Reversed and remanded.

W. P. & J. B. Harris, for appellant,

Reviewed all the evidence and contended that plaintiff was grossly negligent in going upon the trestle, and in remaining upon it after the approach of the train was discovered, and that the railroad company was not at fault. Strong v. C. A. & N. R. R. Co., (MS. Op.); McLellan v. I. C. R. R. Co. (Ib.); R. R. Co. v. Stroud, 64 Miss. 787; Beach, Con. Neg. § 147; R. R. Co. v. Houston, 95 U.S. 697; 41 Miss. 131; 47 Ib. 404; 48 Ib. 127; Field on Dam. 561; Shearman & Redfield on Neg. §§ 34, 35; 51 Miss. 543; 54 Ib. 391.

If both plaintiff and defendant were at fault, plaintiff cannot recover. Field on Dam. § 169; R. R. Co. v. Mason, 51 Miss. 234; R. R. Co. v. McGowan, 62 Ib. 682. Unless the injury is wilfully and wantonly inflicted. Shearman & Redfield, Neg. 519; 44 Am. Rep. 505; 69 Ala. 106; 56 Mo. 173. Under the evidence there can be no pretense that the injury was wilfully or wantonly inflicted.

Fitz-Gerald & Maynard, for appellee.

Plaintiff's act in crossing the trestle did not proximately contribute to the injury, and she was not guilty of contributory negligence. It was after train time, and she and her companions looked and listened before going on the trestle. No danger could reasonably be anticipated.

But, notwithstanding her carelessness, it was the duty of the engineer, after discovering her exposed condition, to use requisite skill and diligence to save her, if possible. 2 Thomp. Neg. 1156; 4 Am. & Eng. Encyc. L. 25. This is the doctrine of our courts.

The engineer did not do all he could to stop. He admitted that he was running very fast and knew that the plaintiff could not cross the trestle without being overtaken, but he continued running while sounding the whistle. He should at once have used efforts to stop. It was, under the circumstances, folly to waste time by blowing his whistle when he should have been stopping the train.

There is no absolute rule for determining what constitutes negligence. It is a question purely for the jury. 4 Am. & Eng. Encyc. L. 22. It was not negligence per se for plaintiff to be on the track. R. R. Co. v. McGowan, 62 Miss. 682. Whether the engineer was negligent was properly left to the jury.

OPINION

CAMPBELL, J.

This verdict is manifestly wrong--indeed it is without any support in the evidence, as we view it. The plaintiff was doubly guilty of contributory negligence, first, in going on the trestle as she did, and, secondly, in not jumping from it when she saw the approaching train. She went upon the trestle, either stupidly, and careless of danger, or recklessly, calculating that she could go over it before a train should come. She was not far wrong in her calculation, if she made one, for she very nearly escaped hurt--another step or two would have saved her. The track of the railroad was level and straight for more than a mile, as all agree, and the trestle was 212 1/2 feet long. There was nothing to...