New Orleans, Mobile & Chicago R. Co. v. Harrison

Decision Date21 April 1913
Docket Number16031
Citation61 So. 655,105 Miss. 18
CourtMississippi Supreme Court

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

Suit by B. P. Harrison and others against the New Orleans, Mobile &amp Chicago Railroad Company. From a judgment for plaintiffs defendant appeals.

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


Flowers, Alexander & Whitfield and J. T. Brown, for appellant.

G. E. Wilson, for appellee.

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



This is an appeal from the judgment of the circuit court of Neshoba county, awarding appellee damages for the alleged negligent killing of H. M. Harrison. The train which killed deceased was southbound, and from the point where deceased was killed to a point about one mile north the track was straight and the view unobstructed. Just how the killing occurred was related by the engineer and fireman of the locomotive. The engineer testified that he was on the lookout all the time, and that he did not discover deceased's peril until he was about seventy-five yards from him, and that when he did discover his peril he applied the emergency brakes, opened the sandcocks, reversed the engine, and sounded the cattle alarm; in short, he did everything possible to prevent the accident. In this the engineer was corroborated by the fireman.

Plaintiff introduced several witnesses, who testified that they had made experiments on the ground, to ascertain how far deceased could have been seen, lying on the ground between the rails, as the engineer said he was at the time he was run over and killed. These witnesses agreed that, standing on the ground, the deceased could have been seen, and a man lying on the ground at the spot where deceased was placed by the engineer was seen and recognized by them, as a man, while they were two hundred yards from the scene of the tragedy. Undoubtedly, deceased was a trespasser, and was also unconscious at the time he was killed. The testimony warrants the inference that he was in a drunken stupor, asleep on the railroad track.

By a long line of decisions this court has held to the doctrine that the railroad owes no duty to a trespasser until his peril is discovered; that, as to trespassers, it is not the duty to keep a lookout. If there is any principle of law settled by this court, it is that principle. As a corollary to this well-settled rule is the further rule that the railroad company must not wantonly or willfully injure a trespasser upon its tracks. These two rules are reasonable and just, and are not applicable to railroads but measure the liability of everybody similarly situated. In this case the engineer testified that he was on the lookout for obstructions, but, that he did not see and identify deceased until it was too late to prevent the accident. The evidence of others tends to show that if the engineer was on the lookout, as he said he was, he was obliged to have seen deceased at least two hundred yards away. This evidence was submitted to a jury, and they must have disbelieved the engineer; else their verdict was in the face of the rules above announced.

The evidence of witnesses for plaintiff certainly justified the belief that the engineer was not looking ahead; but this alone would impose no liability upon the company, as it owed no duty to plaintiff to keep a lookout. Did this evidence warrant the jury in rejecting the evidence of the engineer entirely, which, if done, would leave the killing unexplained? In our examination of the authorities, we find two cases decided by this court, which discuss the competency and value of evidence of this kind. The first, case is Railroad Co. v. Hawkins, 82 Miss. 209, 34 So. 323. In that case the engineer, as in this case testified that he was on the lookout and did not see the men and dogs, and there was no evidence to contradict his statement, unless the admitted facts did so. In this state of the case, the jury rendered a verdict for plaintiff, and upon appeal Judge CALHOON, speaking for the court, said: "If the engineer was on the lookout, as he says he was, in coming around a curve debouching into a cut, he must have seen the men and dogs. The jury manifestly thought either that he did see them, or should have seen them by proper lookout, in entering so dangerous a piece of road. There is no...

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    • December 7, 1914 obligations to him to keep a lookout, to equip its locomotives with headlights, or, if so equipped, to keep them burning. Railroad Co. v. Harrison, 61 So. 655. error in refusing this instruction was partially, though not wholly, cured, by other instructions granted at the request of appe......
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