Martin v. Kansas City, Memphis & Birmingham Railroad Co.

• Citation: 77 Miss. 720,27 So. 646
• Parties: JANE MARTIN, ADMINISTRATRIX, v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY
• Decision Date: 09 April 1900
• Court: United States State Supreme Court of Mississippi

27 So. 646

77 Miss. 720

JANE MARTIN, ADMINISTRATRIX, v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY

Supreme Court of Mississippi

April 9, 1900

March 1900

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

Mrs Martin, administratrix, was the plaintiff in the court below the railroad company was defendant there. From a verdict upon a peremptory instruction, and judgment for defendant the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

W. D. Anderson, for appellant.

The question is whether or not the testimony in the case tends to establish that the defendant was guilty of gross, wanton or intentional wrong. If defendant was guilty of such conduct, contributory negligence on the part of plaintiff could not defeat a recovery.

Under the law of Alabama, which governs in this case, it is not necessary for the defendant to have intentionally caused the injury to plaintiff. If it was the result of gross and wanton negligence and inattention to duty, that is equivalent to intentional wrong. Tanner v. Railroad Co., 60 Ala. 621; Brown v. Scarboro, 97 Ala. 316; Railway Co. v. Bowers, 110 Ala. 328.

The circumstances attending the injury and death of Martin in this case are such as ordinarily only occur from the gross and wanton negligence of the agents and employes of a railroad. The mere fact that the switch, where the wreck occurred, was open and caused the wreck and death of the defendant makes out a prima facie case of gross and wanton negligence on the part of defendant, and placed the burden of exculpating itself on appellee. Hutchinson on Carriers (2d ed.), sec. 800; Railroad Co. v. Albritton, 9 Ga., 242.

In this case we have proof of a switch held together by a bolt and tap that were clearly insecure the day before the wreck, and the condition of this switch was brought to the knowledge of the defendant. It was allowed to remain out of order until the death of Martin.

It should have been left to the jury whether this was a wanton and reckless disregard of duty by the defendant.

Under the circumstances the employes in charge of the train were guilty of gross and wanton conduct in running at the rate of speed the train was going when the wreck occurred. To understand the situation: One-quarter of a mile west of the switch where the wreck occurred, there is a high point; from there to the switch is down a heavy grade; the switch is situated on a sharp curve, and in connecting with the main line makes a reverse curve. All the witnesses who saw the derailment state that it was the universal custom of the defendant's engineers in charge of the trains going east to shut off steam at the high point and slow up down the grade and over the switch. These witnesses say that this was not done in these instances.

Does not this tend to show a reckless disregard of the safety of life?

W. H. Clifton, on same side.

Conceding the decedent violated a rule in tiding on the engine, it had no connection, causal or otherwise, with the accident, and that it did not directly contribute to the injury suffered. 14 Am. & Eng. Enc. L., 908, note 4; Memphis, etc., Ry. Co. v. Thomas, 51 Miss. 641; White v. Railway Co., 72 Miss. 13.

An employe cannot be bound prejudicially for the violation of a rule of which he had no knowledge. There was no proof that Martin had knowledge of defendant's printed rules. 14 Enc. Law, 908, note 1; Railway Co. v. Probpst (Ala.), 3 So. 764; Railway Co. v. Perry (Ala.), 6 So. 40; Alabama, etc., Railway Co. v. McDonald (Ala.), 20 So. 472.

There was an abandonment of the rule. The railroad company permitted its tankman to ride on the engines; and in proving such a custom at variance with the rule, plaintiff is not required to prove knowledge of the custom on the part of the superior officers. It may be implied from the notoriety of the custom. White v. Railway Co., 72 Miss. 21; Reed v. Railway Co., 33 N.W. 451; Louisville, etc., Railway Co. v. Richardson (Ala.), 14 So. 211.

The defendants' roadbeds and ways were improperly constructed just where this awful tragedy happened. The engine was defective, and the man who stood at the throttle had said, a few hours before, it was the last run he intended to make with it.

Even if plaintiff's intestate was guilty of contributory negligence, the wilful, wanton negligence of defendant, being the efficient proximate cause of the injury, the plaintiff is entitled to a recovery, and the excluding of plaintiff's evidence, followed by a peremptory instruction, was clearly erroneous. Thompson on Negligence, 1160; Wharton on Negligence, 348; Davis v. Mann (Thompson on Negligence), 1105, 1157; L. & N. Railroad v. Webb, 12 So. 375; L. & N. Railroad v. Watson, 8 So. 250; G. P. Railway Co. v. Lee, 9 So. 234; M. & E. Railway Co. v. Stewart, 8 So. 10; A. G. S. Railway v. Frazier, 9 So. 303; L. & N. Railroad v. Markee, 15 So. 13; Beyer v. L. & N. Railroad Co., 21 So. 953; Brown v. Scarboro, 12 So. 292; Christian v. Railroad Co., 71 Miss. 240; Grand Trunk Railway Co. v. Ives, 144 U.S. 408; 4 Enc. Law, p. 30, notes 1 and 2; Railway Co. v. Deaver, 79 Ala. 221; Railway Co. v. Lowe, 73 Miss. 215; A. G. S. Railway Co. v. Hall, 17 So. 178.

J. W. Buchanan and Allen & Robbins, for appellee.

The supreme court of Alabama, in a recent case, opinion by McClellan, J., clearly lays down the rule that riding on an engine is per se negligence, and will defeat an action for injuries received while so riding, which would not have been received had the deceased not been riding there. Warden v. L. & N. Railroad Co., 94 Ala. 277. To the same effect see Martin v. Railroad Co., 41 F. 125; Judkins v. Railroad Co., 80 Me., 417; Hicky v. Railroad Co., 14 Allen, 429; Railroad v. Langdon, 1 Am. & Eng. R. R. Cas., 87; Railroad v. Thomas, 1 Am. & Eng. R. R. Cas., 79; Railroad Co. v. Ray, 70 Ga., 674; Martensen v. Railroad Co., 60 Iowa 705; Avend v. Railroad, 17 Am. & Eng. R. R. Cas., 614; Doggett v. Railroad, 34 Iowa 284; Robinson v. Railroad Co., 22 Barb., 91; Baltimore, etc., Railroad Co. v. Jones, 95 U.S. 439; Thompson on Carr. Pass., 269; 2 Wood on Railways (Minor's Ed.), p. 286.

The deceased, at the time of the accident, being of his own volition in an obviously dangerous place, the law in Alabama and everywhere else, holds that he was guilty of negligence per se, and unless the defendant wantonly or maliciously killed him, his administratrix cannot recover.

It therefore devolved upon the appellant to show how the accident occurred, and that it was the result of wanton, wilful, and reckless negligence on the part of the appellee. In case of an injury to an employe, no presumption of negligence on the part of the railroad company arises from the mere fact of injury, and not only the injury and negligence, but the wilful character of such negligence, must be affirmatively proven.

The appellant introduced testimony which, it is claimed, proved a custom or habit of tankmen to ride on engines, but the supreme court of Alabama, in dealing with the question of custom, introduced for the purpose of justifying one in taking a dangerous place on a train, uses the following language: "The fact that one is in the habit of doing an obviously dangerous thing does not make his act any the less a dangerous one. . . . Custom can, in no case, impart the qualities of due care and prudence to an act which involves obvious peril, voluntarily and unnecessarily done, and which the law itself declares to be negligence." Warden v. L. & N. Railroad Co., 94 Ala. 277. We also cite: Railroad v. Clark, 15 Am. & Eng. R. R. Cas., 261; Railroad v. Robins, 43 Kan. 145; Hebler v. McCartney, 31 Ala. 501; Bryant v. Railroad, 56 Vt., 710.

There was testimony showing very clearly that decedent was on the engine without the permission of the conductor and against the rules of the company, with which he was well acquainted.

In another case from Alabama, an accident occurred on the route resulting in death. It happened, just as in the case at bar that several cars and the caboose did not leave the track, parties in the caboose being uninjured. The question was raised as to whether the deceased was a trespasser, a passenger or a licensee. In dealing with this question, the supreme court used this language: "We are of the opinion that it is not material to consider whether deceased was a trespasser, a passenger or a licensee. If he was a trespasser, he could not recover, except for a wanton or wilful injury done him. If he was a passenger or licensee, he had no...