Lowe v. Mobile & O. R. Co.

• Decision Date: 09 January 1928
• Docket Number: 26796
• Citation: 149 Miss. 889,116 So. 601
• Parties: LOWE v. MOBILE & O. R. CO. [*]
• Court: Mississippi Supreme Court

116 So. 601

149 Miss. 889

LOWE v. MOBILE & O. R. CO. ^[*]

No. 26796

Supreme Court of Mississippi

January 9, 1928

Division B

Suggestion of Error Overruled Feb. 6, 1928.

APPEAL from circuit court of Lowndes county, HON. J. I. STURDIVANT Judge.

Action by Louberta Lowe, a minor, by next friend, against the Mobile & Ohio Railroad Company. From a judgment for defendant plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

G. J. Rencher, for appellant.

Carl Fox and Owen & Garnett, for appellee.

OPINION

ETHRIDGE, J.

Louberta Lowe, a minor three years of age was struck and injured by the steps of one of the railroad company's trains, and brought suit for said injury. It appears that the minor was living with her grandparents near the railroad track, some three miles east of the city of Columbus. While her grandmother was at church, and her grandfather was staking out a cow on the premises, the child left the house and went down the highway to a point where the highway turns parallel with the railroad, and went upon the track or right of way of the railroad. This was somewhere near three o'clock in the afternoon, and defendant's train was approaching Columbus from the east.

As the train approached, the whistle was blown, and this attracted the attention of two witnesses for the plaintiff. These witnesses testified that the distance of the train was at least nine hundred feet from where the injury occurred at the time the whistle was blown. One of the witnesses stated that the train did not slow down after blowing the whistle until it was right near where the child was injured. When the child was injured, the rear coach of the train was about one car length from the child, and the train was backed, after the injury, and the child was taken on board and placed in a hospital at Columbus. It appears that the train was running at thirty-five or forty miles per hour, and could have been stopped within six hundred feet.

The fireman of the train testified that he saw the child come out of some weeds on the right of way, and that, before he could tell the engineer, the engineer put on the air and blew the whistle continuously until the child was struck. The fireman estimated the distance from where he first saw the child to where it was struck as being about four hundred feet. The engineer of the train testified that the child came upon the track out of some weeds, and that he immediately applied the air and blew the whistle continuously until the child was struck, and that he did all that was possible to be done to stop the train; that when the whistle was blown the child turned and stepped off the track, but stopped near and was struck by the steps of the engine and injured.

It appears from the record that the child was rendered unconscious for some time, and suffered great pain from a discharging ear on the side on which she was struck. Two...