Morehead v. Yazoo & M.V.R. Co.

• Decision Date: 14 March 1904
• Citation: 84 Miss. 112,36 So. 151
• Parties: HARPER MOREHEAD v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY
• Court: Mississippi Supreme Court

36 So. 151

84 Miss. 112

HARPER MOREHEAD v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY

Supreme Court of Mississippi

March 14, 1904

FROM the circuit court of Claiborne county. HON. GEORGE ANDERSON Judge.

Morehead appellant, was plaintiff, and the railroad company, appellee defendant in the court below. From a judgment in defendant's favor the appellant appealed to the supreme court.

Appellant had been station agent at Ingleside for sixteen years. The depot there was on the east side of the railroad track. There was a side track on the east side of the main line, and next to the depot. The space between the two tracks is nine feet wide, and level, and was used by pedestrians. Appellant was injured by being struck by a passenger train going south on the morning of April 23, 1902. The testimony showed that plaintiff had been in the habit of walking down the center of the side track for some distance south to a point where the baggage cars of southbound passing trains stop in order to get the mail and express; that passenger trains usually and nearly always kept the main track, and that the rules of the company required all work trains and irregular trains to give the right of way to the regular passenger trains. On the morning of the accident, plaintiff was sitting in the depot writing, and expecting the southbound passenger train. He heard the train whistle, and at once started to go down the center of the side track, to the place where it was his custom to go in order to transact his regular business with the trains. The passenger train, instead of going down the main line, as was usual, took the side track, because there was a work train on the main line, and just as plaintiff reached the point he expected to stop, the train overtook him and struck him, fracturing his spine and causing paralysis of the lower limbs. Plaintiff did not look north at all; he was accustomed to that train coming on the main line, and not on the side track; he did not have to go the way he did, but it was the most convenient way; he had no notice that the train would come in on the side track, and did not know that there was a work train on the main line; took it for granted that the passenger train was on the main line; was relying on the rules of the company, requiring other trains to give the main line to the regular passenger trains. Plaintiff's brother was walking just behind him, and got out of the way of the train, and was not injured. Plaintiff could easily have seen the train in time to have gotten out of the way if he had looked up. Plaintiff's evidence, when he rested his case was excluded, and a peremptory instruction granted by the court to find for defendant. To this action of the court plaintiff excepted, contending that it was the invariable custom of the defendant company, continued through many years, to bring in its southbound passenger trains on the main line, and that it was the rule of the company to require other trains to give the right of way to passenger trains and that it was negligence on the part of the railroad company to bring the train on the side track on the morning of the accident without sending a flagman ahead to give warning; and that, notwithstanding the carelessness, in-attention, and negligence of the plaintiff at the time of the injury, still his position on the track was one of danger and peril, which was easily apparent to the engineer, who failed to use reasonable care to avoid the injury.

Affirmed.

J. McC. Martin, and McLaurin, Armistead & Brien, for appellant.

In their relations to others, respecting the degree of care required of them to prevent injuries, the courts lay down the following rules, to wit:

1. As to trespassers, they owe no duty, unless their peril be seen, then they should use all reasonable effort to prevent injury. Having done this, then they are blameless. Railroad Co. v. Watley, 69 Miss. 145.

2. As to trespassers when the engineer is made aware of their peril, and he willfully, wantonly and recklessly hurts them, then the company is liable. Railway Co. v. Williams, 69 Miss. 631.

3. As to licensees. They owe the duty of ordinary care; and should injury result in the absence of ordinary care they are liable. Law v. Mo., Kan. & Tex. Ry., 20 Railroad Rep., 588 (s. c., 67 S.W. 1028).

The Arnola case, 78 Miss. 787, does not contravene the above rule. Arnola was not a licensee, because no inducements had been held out by the company to her or the public to use the pass way at Crystal Springs, over the company's lot. Hence, in that case the rule as announced by the court: "A person who, without the invitation of the owner, goes upon the land or premises of such owner, takes such permission with all the dangers attending it." Had she been there as a licensee, by the invitation of the company, the rule would clearly be as first above stated. Such, also, is the case of Dooley v. R. R. Co., 69 Miss. 648. In that case, the court says: "It is the plain case of an inattentive person using the track of a railway, where he had no right to be, and where the company had a right to expect an unobstructed way at all times, and in such manner as to absolve others from all liability from any injury, short of willful and wanton injury, that may occur."

In the case of Bell v. Southern Ry. Co., 30 So. 821, a Mississippi case, not reported in the Mississippi Reports, the facts developed and the rule applied were as follows: "The plaintiff was unloading coal from defendant's car on its side track, placed there for that purpose. After satisfying himself that no engine was attached, plantiff backed up his wagon, and while so doing his team became frightened and he stepped in front of them. At that moment he heard the engine hit the train, and the coal car struck the wagon, frightening the team so that they ran over plaintiff. He could not see the engine before the collision and received no warning from the defendant's servants." Held, "As the plaintiff was at the car, on the implied invitation of the defendant, defendant's negligence and plaintiff's contributory negligence were questions for the jury."

4. As to persons on track or premises by invitation. Of this class are passengers, and others, using crossings prepared by the company for public convenience. The case of Railway Co. v. Hirsch, 69 Miss. 132, is of this character. Says the court: "Where a railroad company so locates its station as to require persons approaching it from the main business portion of the town, to cross several tracks which are kept smooth for pedestrians and without any well defined crossings, this is tantamount to an invitation to such persons to cross at any point near the station, and persons so crossing are not trespassers. And under such circumstances the company will be held to the utmost caution in the movement of its trains on such tracks to prevent injury to persons so crossing."

The case of Railroad Co. v. Turner, 71 Miss. 404-406, is to the same effect. Plaintiff was carrying away his purchases from a trading car, where it had been placed by the company, and to which the public resorted.

5. As to employes and persons charged with fixed duties. The rule is the same as that for persons on track or at stations by invitation. Their obligations to the employer requires that their attention should be engrossed in the performance of duty. Hence, their minds and attention, being engrossed in performance of the duty, they have not the same opportunities and freedom to look out for danger as a licensee, or passenger. The courts recognize this and require from the employer a higher degree of care to avoid injuring such employes.

In the case of Bullard v. Southern Ry. Co., 6 Railroad Rep., 609, a Georgia case (43 S.E. 41), the doctrine is announced: "Railroad engineers should observe more caution in running at places where they know persons are likely to be on the track than elsewhere, even if those persons are trespassers, and especially is this true when the company has at least tacitly consented to this otherwise unauthorized use of its property by the public."

In the case of Ala. Great Southern R. R. Co. v. Brooks, 6 Railroad Rep., 375 (33 So. 181), the rule is stated: "Employes do not assume risks created by the employer's negligence." Again, in the case of Boggero v. South. Ry. Co., 4 Railroad Rep., 386 (41 S.E. 819): "A railroad company owes a greater duty to one on the railroad track with its consent or permission. " So, in the case of Klien v. Jewett, 5 Neg. Cases, 1: "The plaintiff, in attempting to pass from the depot to the cars, in the absence of warning, has a right to regard himself in a place of safety, where he had a right to give his whole attention to the business he had in hand, and was not bound to look out for extraordinary dangers occasioned by negligence of persons in charge of the road."

Employes on track--in general. "The general rule is that, as to persons lawfully upon the track engaged in labor, the railroad company owes a duty of active vigilance, and such persons have a right to become engrossed in their labor to such an extent that they may be oblivious to the approach of trains--relying, as they may, upon the duty imposed by law with reference to them." See notes admirably digested, in vol. 4, New Series Am. & Eng. R. E. Cases, p. 542.

"Where workmen are placed upon the track by a railroad company to do work, the company must be as to them actively vigilant. Such persons have a right to become engrossed in their employment and to expect that care and pains will be taken as to them." (See same notes last above cited.)

"Where a railroad employe, engaged in moving ashes, etc., from a side track in depot grounds, was injured by a train set off upon said track, held that he had a...