New Orleans, M. & C. R. R. Co. v. Cole, 15386

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: SMITH, J.
• Citation: 57 So. 556,101 Miss. 173
• Parties: NEW ORLEANS, MOBILE AND CHICAGO R. R. CO. v. ANN COLE
• Docket Number: 15386
• Decision Date: 26 February 1912

57 So. 556

101 Miss. 173

NEW ORLEANS, MOBILE AND CHICAGO R. R. CO.
v.
ANN COLE

No. 15386

Supreme Court of Mississippi

February 26, 1912

APPEAL from the circuit court of Newton county, HON.C. L. DOBBS, Judge.

Suit by Ann Cole et al. against the New Orleans, Mobile & Chicago Railroad Company. From a judgment for plaintiffs, defendant appeals and plaintiff prosecutes a cross-appeal.

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

Judgment affirmed.

Flowers, Alexander & Whitfield for appellant.

J. D. Jones, R. N. & H. B. Miller for appellees.

No brief of counsel on either side found in the record.

OPINION [57 So. 557]

[101 Miss. 174] SMITH, J.

Joe Cole having been struck and killed, as it is alleged, by one of appellant's trains, this suit was instituted by his widow and daughter to recover damages therefor. Neither side being satisfied with the verdict and judgment for one thousand dollars, rendered against appellant in the court below, each filed a motion for a new trial, both of which were overruled, and the case comes to us on direct appeal by appellant and on cross-appeal by appellees.

[101 Miss. 175] The evidence introduced in behalf of appellees was to the effect that on the night of the accident, between 8 and 9 o'clock, Cole was seen walking down the track a short distance ahead of one of appellant's trains, and that just after it had passed him he was found lying near the track with both feet, which had been cut off, lying between the rails, as was also a sack of watermelons which he had with him at the time. The evidence introduced in behalf of appellant was to the effect that Cole was under the effect of intoxicating liquor at the time of the accident; that the train was running slowly, and was carefully handled; that the bell was ringing, and that the whistle had been blown several times for a railroad crossing just a few moments before the accident occurred; that the engine was equipped with an electric headlight, then burning brightly; that the engineer and fireman were each keeping a proper lookout; and that neither of them saw Cole on the track. Other witnesses also testified that they were watching the train as it passed, and that no one was on the track at the place where the accident occurred just before or at the time the engine passed it; that the pilot of the engine was of standard form, and was elevated only four inches above the track; and that there were no bruises on Cole's body, his only injury being the amputation of his feet. From these two last facts it is argued that Cole was not struck by the pilot of the engine, and, consequently, could not have been on the track in front of the train, but fell under the wheels of the cars thereof after the engine had passed. There was also evidence for appellees in contradiction of appellant's evidence relative to the blowing of the whistle and the ringing of the bell.

Appellant complains of the action of the court below in refusing to grant it a peremptory instruction, on the theory that, although the evidence does not show how the accident in fact occurred, it does show that appellant's [101 Miss. 176] train was properly equipped that its servants were guilty of no negligence in handling it, and that, consequently, the accident, however it occurred, was not caused by any default on the part of appellant or its servants. In Railroad Company v. Brooks, 85 Miss. 269, 38 So. 40, this court laid down the rule governing cases of this character in plain and unmistakable language; this language being as follows: "There is yet...