Mississippi Central Railroad Co. v. Robinson

• Decision Date: 06 April 1914
• Citation: 106 Miss. 896,64 So. 838
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENTRAL RAILROAD CO. v. LIZZIE ROBINSON et al

64 So. 838

106 Miss. 896

MISSISSIPPI CENTRAL RAILROAD CO. v. LIZZIE ROBINSON et al

Supreme Court of Mississippi

April 6, 1914

March 1914

APPEAL from the circuit court of Adams county, HON. E. E. BROWN Judge.

Suit by Lizzie Robinson and others 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.

Truly Ratcliff & Truly, attorneys for appellant.

Reily & Darden, attorneys for appellee.

The record in this case is lost.

OPINION

REED, J.

Henry Robinson was struck and killed by one of appellant's trains. This suit is brought by appellees, his widow and children, to recover damages. From a verdict and judgment in their favor for one thousand six hundred dollars this appeal was taken.

On November 28, 1911, about eight o'clock at night, Henry Robinson, a man fifty-two years of age, and his son, Willie Robinson, about twenty years of age, returning to their home in Natchez from an afternoon's hunting trip, were walking along and on appellant's railroad track. They attempted to go over a trestle, which is three hundred and thirty-six feet in length. Willie Robinson knew that a train was about due when he reached the trestle, and testified that he looked and listened for its approach, and, failing to see or hear it, started across. The glare of the train's head light was seen when they had gotten about half way across. They both ran. Willie was struck just as he cleared the trestle. His father was a short distance behind, when overtaken and knocked off by the train. He died in a few hours from the injuries sustained. The trestle where Henry Robinson was killed is within the corporate limits of the city of Natchez. The train, at the time the injury was inflicted, was running at a speed much greater than six miles an hour.

In the declaration it is alleged that the death of Henry Robinson was caused by the running of the train within the limits of the city at a rate of speed greater than six miles an hour. Negligence is also charged in the failure of the appellant to completely operate its train and make proper effort to prevent the injury. To the declaration appellant filed three pleas, the general issue and two special pleas. One of the special pleas presented the defense that the deceased was a trespasser, that his death was not by reason of any recklessness or want of ordinary care upon the part of appellant, and that, after his position of danger and peril was discovered, appellant used all reasonable care and caution to prevent injury. The other special plea states that at the time of his injury deceased was a trespasser, and knew, or by exercising all reasonable care and caution could have known, that a train was approaching; that he was guilty of negligence in being upon the trestle, a place of known danger; and that his gross and reckless negligence contributed to and was a proximate cause of his injury and death. Appellee's motion to strike the special pleas from the file, because they did not present defense sufficient in law, was overruled, and thereupon they filed replications.

Counsel for appellant, in their brief, state that, under the pleadings, "the following were the vital points of controversy to be submitted to the jury: (1) The defense of the general issue by the plea of not guilty, which put the plaintiffs upon the necessity of proving the accident, hurt, and damage. (2) The special plea that the plaintiffs' intestate was a trespasser, and was not hurt by wanton or reckless carelessness. (3) That the plaintiffs' intestate was a trespasser, and that the employees of defendant used every effort to prevent injury after the position of peril was discovered."

At the end of the introduction of testimony by appellees, appellant moved the court to exclude the testimony and direct a verdict in its favor. The court overruled the motion. This is assigned as error. Appellant contends that the trial court, having made its ruling sustaining the sufficiency of the special pleas, should have, under the pleas and the proof, sustained the demurrer to the testimony. Practically the same questions for the consideration of the jury could have been raised under the plea of the general issue as were presented under the three pleas in the case.

The death in this case was caused by the running of the locomotive and cars of appellant company. By the statute (section 1985 of the Code of 1906, as amended by chapter 215, Laws of 1912) this was prima facie evidence of negligence. Such negligence, unexplained, entitled appellees to judgment. The rule is stated in the case of A. & V. Railway Co. v. Thornhill, 63 So. 674, as follows: "Proof of injury inflicted by the running of defendant's cars is prima facie evidence of negligence, and, unexplained, entitles the plaintiff to judgment." We quote another rule announced in the Thornhill case: "This prima facie presumption, however, is not a specific, but a general, one; that is, negligence is presumed in the doing or omission of any act that could have reasonably caused the injury, and consequently, in order that it may be rebutted, the evidence must disclose the doing or omission of every act from the doing or omission of which an inference of negligence vel non could be drawn."

We do not see that the prima facie evidence of negligence has been explained in this case. It was incumbent upon appellant company to disclose by evidence the doing or omission of every act from which an inference of negligence vel non could be drawn. As this had not been done, it cannot be said that the prima facie case had been met. The proof should have shown, not only where the deceased was and what he was doing when injured, but should have also shown what was being done by the servants of appellant company to prevent injury.

Appellees charge that appellant was liable because of its negligence in exceeding the statutory speed, six miles an hour, in the limits of a municipality. Section 4043, Code of 1906. There is no question about the violation of this statute. The distance from the corporate limits along the railroad track to the trestle was shown by the proof to be 822 feet. According to the testimony of several witnesses, the train, though within the city, was running at a high rate of speed, say by estimate from fifteen to thirty miles per hour. It is also shown that the train, after the emergency brakes had been applied, ran about four hundred feet. It was in evidence that, had the train been going at a rate of not over six miles an hour, it could have been stopped within sixty or sixty-five feet. In the case of Railroad Co. v. Dick, 95 Miss. 111, 48 So. 401, it is said that the "object of this statute is to have the speed of the train reduced, so as to bring the train under perfect control," It is shown in the proof that from the end of the trestle, looking back in the direction from which the train approached, there is a clear and unobstructed view of the track for about six hundred and seventy-two feet. The speed of the train was not reduced to the maximum permitted within a city. If it had been, it is clear from the evidence that it would have been under such perfect control as to enable the engineer to have stopped it before the men were struck.

The deceased, it is true, was a trespasser when he was injured. This, however, did not relieve appellant from liability. According to the testimony, the train, had it been running at the rate of six miles an hour, could easily have been brought to a stand within the distance from the trestle to the point where the clear and unobstructed view ended. The engineer, with his light upon the track, could have seen the deceased and discovered his position of peril in ample time to prevent the injury had the train been traveling at a lawful speed. He failed in his duty when he did not do so, and there was negligence.

In this case, the causal connection between the excessive speed and the injury has been shown. The unlawful speed was the proximate cause of the injury. In the case of Railway Co. v. Carter, 77 Miss. 511, 27 So. 993, WHITFIELD, C. J., delivering the opinion of the court, referring to the liability of a railroad company when speed is the proximate cause of the injury, said: "On the other hand, the general doctrine that the company is not liable to a trespasser, except for willful, 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 willfully, wantonly, or recklessly inflicted would be judicial legislation. The plain letter of the statute, as well as its obvious purpose, alike forbid us to engraft upon the statute such an exception."

Viewing the case from the pleadings and the proof offered by appellees, and in the light of the law, we do not see that the trial court erred in overruling appellant's motion for exclusion of the testimony and a verdict in its favor. Appellant in its defense did not show what was done by its servants to prevent the injury. There is no testimony as to the handling of the train after the position of peril of the deceased was seen, or could have been seen. It is not shown that any effort was made, to avoid the happening. The engineer, the one who must have known all that took place was not introduced as a witness. Neither did the fireman...