Mobile & O. R. Co. v. Robinson

• Decision Date: 25 June 1923
• Docket Number: 22996
• Citation: 132 Miss. 841,96 So. 749
• Parties: MOBILE & O. R. CO. v. ROBINSON et al
• Court: Mississippi Supreme Court

96 So. 749

132 Miss. 841

MOBILE & O. R. CO. v. ROBINSON et al

No. 22996

Supreme Court of Mississippi

June 25, 1923

Division A

(Division A.). January 1, 1920

1 RAILROADS. Lookout for trespasser not required.

The servants of a railroad company in charge of its trains are under no duty to keep a lookout for trespassers on the railroad track, and are required only to exercise reasonable care to prevent injuring such a trespasser after they have discovered and realized his peril.

2 RAILROADS. Statutory presumption of negligence as to trespasser held overcome.

In an action against a railroad company for damages for the death of a person alleged to have been struck and killed by one of its locomotives, where the testimony for the plaintiff discloses only that the decedent, while trespassing on the railroad track, was struck and killed by one of the defendant's locomotives, thereby making out a prima-facie case of negligence under section 1985, Code of 1906 (Hemingway's Code, Section 1645), and the engineers of each of the defendant's locomotives which could have struck the decedent testify that they did not see the decedent at the time he was struck, and did not know that he had been struck until told thereof some time thereafter, it is error to charge the jury, at the request of the plaintiff, "that if they believe from a preponderance of the evidence that the deceased, W. R Robinson, was injured and killed by the operation of a train of defendant, they will find their verdict for plaintiff."

HON. C P. LONG, Judge.

APPEAL from circuit court of Lee county, HON. C. P. LONG, Judge.

Suit by Mrs. Samantha Robinson and others against the Mobile & Ohio Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Judgment reversed and remanded.

Carl Fox and J. M. Boone, for appellant.

The record establishes without any conflict in the evidence, that at the time he was killed Robinson was a trespasser on the track, whose presence in the place of danger was unknown to any agent or servant of the defendant, and therefore that defendant did not owe him any duty, and, there being no duty, there could not have been a breach of duty nor any liability. The court below erred in its construction of the prima-facie statute, or rather in its construction of the decisions of this court construing that statute.

From the beginning, in an unbroken line of decisions down to the Ash case, 91 So. 31, this court has held that no duty ever exists or can exist on the part of the railroad company toward a trespasser if the company never learns or knows anything about his presence in the place of danger until after he is injured or killed. There is but one exception to this rule; that is, in municipalities where to the knowledge of the railroad company people are usually or frequently on its track, the company is bound to be on the lookout. In Yazoo & M. V. R. Co. v. Smith, 71 So. 752, 111 Miss. 471, the court said.

"As a general rule, a railroad company is entitled to a clear track, owes no obligation to keep a lookout for trespassers, and is required only to refrain from injuring trespassers after their position of peril is discovered." See also Yazoo & M. V. R. Co. v. Huff, 71 So. 757, 111 Miss. 486; New Orleans, M. & C. R. Co. v. Harrison, 61 So. 655, 105 Miss. 18, 20.

Possibly counsel for plaintiffs will undertake to apply the rule laid down in the Hawkins case, 82 Miss. 209, and the Harrison case, 105 Miss. 18, 61 So. 655, in which the engineers testified that they were looking ahead of their trains, and in the first case, did not see the men and dogs on the track, and in the latter case did not see the deceased until within seventy-five yards of him, and it was held that under the circumstances, there being no reason why the engineer did not see if they were on the lookout, the juries were justified in finding that they did see.

The record in the case at bar is wholly lacking in any element of self-contradiction in the testimony of any of the engineers, firemen, and other employees on any of defendant's trains. They did not say, merely, that they were unable to recall whether they saw Robinson or any person who might have been him, but they stated affirmatively that they did see him. No defense could possibly be more complete and adequate than that the defendant owed no duty and was under no obligation to the trespasser. Without a duty or obligation to a person there cannot be any negligence toward him nor breach of duty nor liability. Drake v. Y. & M. V. Railroad, 29 So. 788, 79 Miss. 84, 105; A. & V. R. Co. v. Thornhill, 106 Miss. 287, 63 So. 674; Railroad Co. v. Harrison, 61 So. 655; Alabama Great Southern Railway Co. v. Daniell, 66 So. 730, 108 Miss. 358, 374.

The defendant was entitled to have submitted to the jury on the evidence the question of breach or non-breach of duty toward deceased. Defendant was entitled to have its evidence that its trains were properly equipped and operated, and that it was guilty of no negligence, submitted to the jury. This evidence was withheld from the consideration of the jury. It was the jury's province and not the court's to weigh the evidence and determine whether or not the company had met the burden of the presumption. We think this has been clearly held by this court in several recent cases. Davis v. Elzey, 88 So. 630; A. & V. R. Co. v. Thornhill, 106 Miss. 387; Hines, Director General, etc. v. McCullers, 83 So. 734, 738, 121 Miss. 666. By instruction No. 1 granted the plaintiffs, the jury were required to find a verdict for the plaintiffs upon the finding of the single fact that Robinson was killed by a train. Necessarily, the jury disregarded the defendants evidence that it had not breached any duty to deceased, and had not been guilty of any negligence in any respect.

Geo. T. Mitchell and C. R. Bolton, for appellees.

The Smith, Ruff, Ash, and Harrison cases cited by appellant announce the proposition that a railroad company owes no duty to keep a lookout for a trespasser--a proposition that is not vital to this case. In all of those cases, the full facts were shown and the injured parties were admitted trespassers at the time of the accident was known and shown on the trial and the prima-facie statute had given way to proven facts. How different is the record in this case. The last positive account of Robinson while alive was at Pulltite church, something near midway between Saltillo and Guntown and away from the railroad. The next established fact is that his body was found about twelve hours later on the track of appellant five to seven miles from Pulltite, with severe wounds which the jury found were inflicted by a running train, thereby bringing into operation the prima-facie statute. The Brooks case, 38 So. 41, has stood the test of time, and makes the following clear announcement of the burden imposed upon a railroad company by the operation of the prima-facie statute: "It was shown beyond peradventure that the injury was inflicted by the running of the train. This was prima-facie proof of negligence, authorizing a recovery by plaintiff. To overcome this statutory presumption, it devolved upon the appellant to exculpate itself by establishing to the satisfaction of the jury such circumstances...