New Orleans & N. E. R. Co. v. Brooks

• Decision Date: 13 March 1905
• Citation: 38 So. 40,85 Miss. 269
• Court: Mississippi Supreme Court
• Parties: NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY v. AMELIA BROOKS

38 So. 40

85 Miss. 269

NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY v. AMELIA BROOKS

Supreme Court of Mississippi

March 13, 1905

FROM the circuit court of Pearl River county, HON. WILLIAM T MCDONALD, Judge.

Mrs Brooks, the appellee, was plaintiff, and the railroad company, the appellant, defendant in the court below. The suit was for the alleged wrongful killing of plaintiff's husband. From a judgment for $ 1,999.98 and costs of suit in plaintiff's favor the defendant appealed to the supreme court.

The testimony for plaintiff was, in substance, as follows Appellee's husband was killed within the corporate limits of the town of Poplarville about dark by a freight train of appellant going south, running at a rapid speed--exceeding the statutory rate of six miles per hour. He was found about one hundred feet north of a street crossing and about three hundred yards south of the railroad depot. The train--an extra freight--when it approached the depot slowed up some and blew several blasts of its whistle, but after having been advised by the signal board to go ahead the engineer put on steam and ran at an accelerated speed, not blowing the whistle or ringing the bell after he passed the depot, passed one crossing without giving any signal, and ran into Brooks about one hundred feet north of the second crossing inflicting injuries from which he died in a short time afterwards. That both the crossings south of the depot were constantly used by the traveling public, and a number of people lived in that vicinity. That Brooks was seen some distance away from where he was struck about thirty minutes before the accident. For appellant it was testified that the freight train of twenty-two cars was fully equipped with air brakes, was being pulled by an engine with a headlight burning; that the whistle was blown a number of times after passing the depot, and the bell was kept ringing; that at or about the station the track curved, Brooks being on the outer or eastern side. The engineer testified that he was on the lookout, and did not see Brooks, and knew nothing about having struck him until told of it by the fireman. The fireman testified that he was on the lookout, and saw an object on the track when the engine neared Brooks, which he first took to be a newspaper, then a calf, and, just as the engine passed over it, he saw it was a man, and called out to the engineer that a man had been struck; that the train was stopped as quick as possible, and he and the engineer went back and found Brooks on the side of the track, mortally wounded. One witness for defendant testified that he passed the crossing just south of where the accident occurred, and saw some one in his shirt sleeves sitting on the track about one hundred feet north of the crossing; that he had his face toward the south and his back to the north; and this was about thirty minutes before the accident occurred. One Schrader testified in rebuttal for plaintiff that he saw the fireman on the night of the accident, and the fireman told him then that he saw Brooks just before the train struck him, and that two men ran off from him. The fireman had denied making such statements to Schrader when he was on the witness stand.

Defendant's motion for a new trial was overruled.

Affirmed.

Fewell, Bozeman & Fewell, and McWillie & Thompson, for appellant.

The question presented is whether there can be a recovery against a railroad company for damages sustained by reason of the failure of its servants to comply with the requirements of the law in respect to the rate of speed in an incorporated town and the giving of signals at crossings where a man sitting or lying on the main track is run over and killed, in the absence of evidence of willfulness.

There is no dispute that Brooks was sitting or lying on the track of the main line at a point where there was no crossing, or that he might have heard the approaching train and seen its headlight in plenty of time to have gotten off the track.

Surely it will not be contended that Brooks was in the exercise of ordinary care, or any care. Indeed, the taking and keeping the position he was in was not only want of care for himself; it was recklessness of the worst sort. And we are at a loss to understand upon what ground it can be contended that his conduct was not reckless. If it was not recklessness, if his conduct was not such as to contribute directly and proximately to his death, then it would be hard to conceive of facts which would be reckless or contributive.

In Alabama, etc., Ry. Co. v. Carter, 77 Miss. 511, it is decided that "to render the company liable the speed must be the proximate cause of the injury." Chief Justice Whitfield, speaking for the court in that case, said: "The determinative questions in such cases are whether the excessive speed was the proximate cause and whether the plaintiff was guilty of contributory negligence which would bar recovery. If plaintiff be a trespasser and guilty of contributory negligence, he is barred, whether trespasser or not, by that contributory negligence, unless the injury be willfully, wantonly, or recklessly inflicted."

Broad as the language of the six-mile statute is, the number of decisions that have been made upon it have given it a definite construction that it does not cut off the defense of contributory negligence, and the legislature has impliedly approved the construction placed upon the...