MaGee v. Mississippi Central Railroad Co.

CourtUnited States State Supreme Court of Mississippi
Citation48 So. 723,95 Miss. 678
Decision Date15 March 1909
Docket Number13,668

FROM the circuit court of Forrest county, HON. WILLIAM H. COOK Judge.

Mrs Magee, appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. The suit was for damages because of the alleged wrongful killing by defendant of plaintiff's husband. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

Thomas Magee, plaintiff's deceased husband, was a section foreman of the defendant, and on the day of his death was in charge of workmen engaged in clearing up the railroad track after a severe storm had blown trees across it. After this work had been completed, the trainmaster, who was on the scene in charge of a special relief train, consisting of a flat car, caboose, and engine, took all of the workmen and a large number of passengers who had been stranded at the scene of the wreckage, toward Brookhaven. The flat car and caboose were both crowded, as was the tender on the engine, and the deceased took a seat on the tool box at the rear end of the tender. The engine proceeded, running backward at a very rapid rate, estimated at thirty to forty miles an hour, when the tender jumped the track, threw deceased between the tender and caboose, and so injured him that he died. The testimony tended to show that the trucks of the tender, to defendant's knowledge, were defective in such a way as to cause the flanges of the wheels to ride the rails, thus making it dangerous to run at a rapid rate. The appellant contended that her deceased husband was ordered by the trainmaster to get aboard the relief train, while the defendant contended that only an invitation was extended him to do so, and that he could have waited and boarded the regular passenger train to go home. The defendant also contended that the plaintiff was guilty of contributory negligence in voluntarily taking a seat on the tool box instead of getting in a safer place.

Reversed and remanded.

Sullivan & Tally, for appellant.

Under the facts in this case, conceding for the sake of argument that the deceased was guilty of contributory negligence, the defendant cannot avail itself thereof, under the decision of this court as laid down in the case of Railroad Company v. Brown, 77 Miss. 342, 28 So. 949.

"Contributory negligence," said this court in that case, "must continue to defeat a recovery where the railroad has been guilty of mere negligence, but where, as in this case, the negligence of the railroad's servant is marked by gross or wilful or reckless misconduct, the contributory negligence of the complaining party should not be permitted to shield the railroad from liability for such misconduct."

Did the defendant discharge its duty to the deceased when its trainmaster ordered him to get aboard a train when there was no seat for him except the one he did take?

The testimony of appellee's engineer, so clearly shows that his conduct in connection with the conduct of appellee's trainmaster was so grossly negligent and reckless that it amounted to wilfulness and wantoness in handling that train at a reckless rate of speed. Martin v. Railroad Co., 77 Miss. 720, 27 So. 646; Railroad Co. v. Byrd, 89 Miss. 308, 42 So. 286; Rymes v. Railroad Co., 85 Miss. 140, 37 So. 708; Stevens v. Yazoo, etc., R Co., 81 Miss. 195, 32 So. 311; Bell v. Southern R'y Co., 87 Miss. 234, 30 So. 821; Laurel, etc., Co. v. Mobile, etc., Co., 87 Miss. 675, 40 So. 259; Allen v. Railroad Co., 88 Miss. 25, 40 So. 1009.

Alexander & Alexander, on same side.

The issue logically presented is whether the engineer was guilty of wilful recklessness and negligence under all the circumstances in backing his engine and train at a high rate of speed, over the road bed softened and weakened as it was by the unprecedented storm; and if he were guilty of wilful negligence or such gross negligence as evidenced recklessness then under the numerous decisions of this court mere contributory negligence on the part of the injured person is not a defense. Railroad Co. v. Brown, 77 Miss. 338, 28 So. 949; Vicksburg R'y Co. v. Barmore, 85 Miss. 426, 38 So. 210; 87 Miss. 271, 39 So. 1013.

Closely akin to this rule, indeed almost another statement of it, is a rule, which has been frequently announced and sanctioned by this court, that where the negligent servant of the railroad company was aware of the peril of the party injured and failed to exercise due care, that is, care proportioned to the danger, the company is liable. It is not necessary to cite authorities in support of this proposition. Another proposition frequently announced during the present session, is that juries may infer wilful or reckless negligence towards one exposed in a position of peril, although the negligent engineer or other employe testified that he was at his post of duty and did not even see the person injured. Such are the cases of Burns v. Alabama, etc., R'y Co., 93 Miss. 816, 47 So. 640. Other cases along this line are cited in the opinion of the court in the case of Burns v. Alabama, etc., R. Co., 93 Miss. 816, 47 So. 640.

Since the Code of 1906 was adopted, the presumption of negligence as to injuries caused by the running of cars applies in favor of employes. The nature and effect of this presumption is fully discussed in Mobile, etc., R. Co. v. Hicks, 91 Miss. 273. It is a presumption not of the negligence of any particular servants of the company but a presumption of liability.

The presumption is not met and overcome by testimony, which although it might show contributory negligence showed a state of facts which would make the company liable notwithstanding the contributory negligence. As this court has more than once recently announced, it is not sufficient to show that plaintiff himself was negligent. The defense of contributory negligence requires that the proof go further and show that plaintiff's negligence contributed to the injury. The presumption is not met and overcome by proof alone that Magee was negligent in seating himself upon the tender. The statute requires defendant to go further and show that that act of negligence was such that the injury resulting from the derailment was in some measure caused or produced by that negligence. We are not contending that the statute in any event raises a presumption of wilful negligence but we do contend that it puts on the company the burden of a complete exculpation and this burden is not met unless the evidence goes beyond showing previous negligence on the part of the injured employe and shows that there was due care exercised on the part of the company after knowledge of the peril. The presumption of liability created by the statute never shifts. It is on the company until it shows not only the alleged act of negligence on the employe's part, but that the company thereafter and up to the time of the injury failed in no duty to him. It is very rare that a case is presented where there are as many concurring acts of negligence. The master was negligent in failing to provide a safe and suitable engine and tank, and in failing to see that the way or track was safe for the movement of trains; the trainmaster, who was the superior officer in charge of the whole train at the time of the accident, and who directed the speed and set aside the bulletin and rules of the company, wag negligent--almost criminally negligent, it would seem--in ordering the train to be run at a reckless rate of speed; the engineer, Achors, who was in a separate department of labor, also about a different piece of work from Magee, was recklessly negligent according to his own admission. All of these acts of negligence by servants supervened after Magee had taken his seat along with other employes on the makeshift train. Every. one of the acts of negligence were committed with full knowledge of the position in which the persons on the tank and caboose were in, and if these positions were perilous then with full knowledge of the peril.

Jeff Truly and T. Brady, Jr., for appellee.

A careful consideration of the facts of this case will, we think, lead to the conclusion that plaintiff's deceased husband, Magee, was at the time of his death a mere licensee on defendant's work-train; being a licensee, his widow, and legal representatives, are by the law denied a recovery. Murdock v. Yazoo, etc., R. Co., 77 Miss. 489; Illinois, etc., R. Co. v. Arnola, 78 Miss. 787; Illinois, etc., R. Co. v. Lee, 71 Miss. 897; Nichols v. Gulf, etc., R. Co., 83 Miss. 139; Morehead v. Yazoo, etc., R. Co., 84 Miss. 123.

If we be mistaken in the contention just advanced, then, Magee at the time he met his death was an employe, not in the active discharge of duty, but, his work being over, was being transported free to his home. This being true this case falls clearly within the principle and within the reasoning of the principle announced in the case of Lovett v. Gulf C. & F S. Ry. Co., 79 S.W. 514, 34 Am. & Eng. R. R. Cases, N. S. 339, decided by the supreme court of Texas in 1904, in which the court said: "It must be considered that plaintiff was neither a passenger nor an employe in the discharge of his duty. He was simply a volunteer riding with permission of defendant gratuitously given in the place selected by himself. Downing v. C. & O. Ry. Co., 28 W.Va. 742. He was riding upon a gravel train in a position from which he would easily be thrown by jerks and jolts to which such conveyances are subject even when carefully operated. In availing himself of the permission to ride he assumed all the risks which arose from the character of the conveyance and the ordinary methods of operating it. The servants...

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