Mississippi Cent. R. Co. v. Pace

• Decision Date: 21 June 1915
• Docket Number: 16821
• Citation: 68 So. 926,109 Miss. 667
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENT. R. CO. v. PACE

68 So. 926

109 Miss. 667

MISSISSIPPI CENT. R. CO. v. PACE

No. 16821

Supreme Court of Mississippi

June 21, 1915

APPEAL from the circuit court of Lamar county. HON. A. E WEATHERSBY, Judge.

Suit by John Pace, by next friend, against the Mississippi Central Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

H. S Buescher, for appellant.

Appellee contends that he is entitled to a recovery in this case because the proximate cause of the injury was the speed of the train in violation of section 4043, chapter 118, Code of 1906, which reads in part as follows: "Any railroad company having the right-of-way may run locomotives and cars by steam through cities, towns and villages, at the rate of six miles an hour and no more; and the company shall be liable for any damages or injury which may be sustained by any one from such locomotive or cars whilst they are running at a greater speed than six miles an hour through any city town or village." And further bases his contention on the authority of Railway Company v. Carter, reported in 77 Miss. 516, where the court, interpreting this statute speaking through WHITFIELD, C. J., says:

"On the other hand the general doctrine that the company is not liable to a trespasser except for wilful, wanton or reckless wrong is not applicable and cannot be invoked where a trespasser is injured by a train running more than six miles an hour in an incorporated town, the excessive speed being the proximate cause of the injury. The statute was enacted to prevent the running of trains at a rate of speed exceeding six miles an hour through incorporated towns for the protection of persons and property whether the persons are trespassers or not. To make the statute applicable only where the injury was wilfully, wantonly or recklessly inflicted would be judicial legislation."

Appellant contends that section 4043, chapter 118, Code of 1906, has no application to the facts of the case at bar, and that Railway Company v. Carter, 77 Miss. 516, does not apply. What are the facts as shown by the evidence?

It is undisputed that it was a violation of the railroad company's rules for anyone not an employee to ride on the engines. It is, therefore immaterial as far as this case is concerned, whether he was riding on this engine with or without the consent of the employees of the railroad company, as the testimony shows that the employees had no authority to give their consent. His status as a trespasser, or at most a licensee, is therefore, beyond dispute.

If a trespasser, the only duty which the railroad company owed him was not to wantonly or wilfully injure him after discovering his peril. Ingram-Day Lumber Co. v. Harvey, 98 Miss. 11, 53 So. 347; Fuller v. I. C. R. R. Co., 100 Miss. 705, 56 So. 783.

If a licensee, the settled rule is that a licensee takes his license subject to its concomitant perils, and the licensor owes him no duty except to refrain from wilfully or wantonly injuring him. 3 Elliot on Railroads, page 1951, sec. 1250; Pollock on Torts (Webb Edition 1894), pps. 639, 640, 641; M. & O. R. R. v. Stroud, 64 Miss. 784.

Overruling appellant's motion to exclude the testimony of appellee and instruct the jury to find for appellant, made at the close of appellees testimony, as set out in the third assignment of errors, and refusing to give the peremptory instruction to find for appellant, asked at the close of all of the testimony, as set out in the fourth assignment of errors, and the giving of instructions Nos. 1, 2, 3 and 4 for appellee, (hereto attached for ready reference), as set out in the fifth assignment of errors, and the refusal to give instructions Nos. 1, 2, 3, 4, and 5 requested by appellant (also attached hereto), as set out in the sixth assignment of errors, was done on the theory that the running of the train, in violation of the statute, constituted such a wanton and wilful infliction of an injury as would entitle appellee, a trespasser or licensee, to recover.

Appellant contends that this is not the law under the facts of this case, because. First, the statute referred to applies only to trains running through cities, towns and villages, and therefore does not apply to a switch engine running in the railroad company's switch yards; and second, it applies only to the general public on the ground on or about the railroad company's tracks and not to employees, passengers, trespassers, etc., on the trains of the railroad company.

The statute was evidently enacted to regulate the speed of through trains running through a town. Such is its clear meaning and no other reasonable interpretation can be given it. "Any railroad company having the right-of-way may run locomotives and cars by steam through cities, towns and villages, at the rate of six miles an hour and no more; and the company shall be liable for any damages or injury which may be sustained by any one from such locomotive or cars whilst they are running at a greater speed than six miles an hour through any city, town or village."

The statute is plain, unambiguous, absolute and positive. It is its own interpreter and the court must enforce it as written. "Ita lex scripta est."

To hold, therefore, that the statute says trains running in the city limits when the statute says trains running through, would also be judicial legislation.

In Mobile & Ohio Railroad Co. v. State, 51 Miss. 137, the court says: "It is within the power of the legislature to regulate the speed of trains while passing through cities and towns."

In the case of I. C. R. R. v. Sumrall, 96 Miss. 860, 51 So. 545, Justice WHITFIELD, in construing the six mile an hour statute, says: "That it was negligence for a railroad company to run its train faster than six miles an hour through an incorporated village or town."

The statute, therefore, manifestly does not apply to a switch engine operating in the switch yards of the railroad company. Engines engaged in switching service generally perform their work in the railroad company's yards, located on its private property, from which the general public is usually excluded.

S. E. Travis, for appellant.

Counsel insist that the word "through" does not always mean from side to side and end to end. This is admitted. This would give the term elasticity enough to include general operations in Natchez and Hattiesburg, which counsel say would be excluded by a literal interpretation of the statute. But this admission in no way supports counsel's contention. The primary meaning of this term "through" is always and everywhere "from side to side and end to end." The text of Cyc. says: "Through. From end to end, or from side to side of; into or out of at the opposite, or at another point; between the side walls of; within; from one side to the opposite side; from one surface or limit to the other surface or limit." 38 Cyc. 301.

Webster's New International says: "1. From end to end of, or from side to side of; from one surface or limit of, to the opposite; into at one point and out of at the opposite, or at another, point; as to bore through a board; a bullet passed through his hat." "2. From the beginning to the end of; to the end or conclusion of; during; as through life; through the year."

It cannot, therefore, be maintained in the light of these definitions of the term "through" in this statute, designed for the protection of the public in cities, etc., against the consequences of running trains through them at a rate of speed in excess of six miles per hour, that the statute applies to private yards, switches and trains, separated from depots, crossings, etc., and in no way concerning or affecting the public. The term surely applies only to trains passing through or into cities, etc., and affecting at least some portion of the public; and the statute must be so construed to uphold it. Once make the term elastic enough to include private places and private operations where the public interest and the public good are not involved and you destroy the reason, the basis, for the law.

The authorities elsewhere support the principles here contended for. See in this connection the following: It has been held that where a city ordinance limits the rate of speed of trains "while passing through said city," it should be construed as applying only to trains passing through the city and not to the movement of cars and engines in the yard or station grounds while making up trains. Green v. Deleware, etc, Canal Co., 38 Hun. (N. Y.), 51.

A city ordinance, limiting the speed of railway trains to four miles an hour, is void as to a portion of a railway, which although within the city limits, runs several miles through fenced agricultural lands not thickly inhabited." Meyers v. R. I. and P. R. R. Co., 42 Am. 50.

In State, New Jersey R. & Transp. Co., Prosecutor, v. Jersey City, 29 N. J. L. 170, it was held that the charter power to regulate the speed of railway trains did not authorize such regulations, except where the railroad crossed the streets or public grounds.

An ordinance requiring lookouts within the city limits does not apply to a desolate, uninhabited part of the city where there are no crossings. Baltimore & O. R. Co. v. State, 50 Am. Rep. 233.

Nor does a statute requiring a lookout on the rear car of every freight train apply to work trains. Bacon v. N. Y., N.H. & H. R. Co., 80 N.E. 458.

"The charter of the city of Birmingham empowered the common council of such city 'to regulate and control the running of engines and cars through the city, and the rate of speed of the same.' Pursuant to this authority the common council passed an ordinance providing that 'no railroad company or corporation whose track passes...