Nixon v. Illinois Cent. R. Co.

• Decision Date: 27 January 1913
• Docket Number: 15,826
• Citation: 103 Miss. 405,60 So. 566
• Court: Mississippi Supreme Court
• Parties: NIXON v. ILLINOIS CENTRAL RAILROAD CO

60 So. 566

103 Miss. 405

NIXON v. ILLINOIS CENTRAL RAILROAD CO

No. 15,826

Supreme Court of Mississippi

January 27, 1913

APPEAL from the circuit court of Panola county, HON. N. A. TAYLOR judge.

Suit by H. L. Nixon and others against the Illinois Central Railroad Company. From a judgment for defendant, the plaintiffs appeal.

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

Reversed and remanded.

P. H Lowrey, for appellants.

We have in this state many decisions involving the liability of the railroad company for injuries inflicted by running trains the most recent of which are probably: N. O. & N. R. R. Co. v. Brooks, 85 Miss. 269; Y. & M. v. R. R. Co. v. Landrum, 89 Miss. 399; Fuller v. I. C. Railroad Co., 56 So. 783; Billingsley v. I. C. R. R. Co., 790.

We also have many decisions involving the liability for negligence in running in violation of the speed limit of six miles per hour in municipalities, notably: V. & M. R. R. Co. v. McGowan, 62 Miss. 683; A. & V. R. R. Co v. Carter, 77 Miss. 511; I. C. R. R. Co. v. Watson, 39 So. 69.

We also have some recent decisions upon our "comparative negligence" statute of 1910: N. & S. R. Co. v. Crawford, 55 So. 596. I also am informed that there is an unreported case of McKay v. L. & N. R. R. Co., coming up from some of the southern counties of the state, decided upon this statute, though I have not seen the record in the case.

This present case is remarkable from the fact that the plaintiffs stand intrenched behind all three of these statutes. I presume probably there is no other case reported in this state, nor probably elsewhere, of exactly this character. I have found none. We say the plaintiffs are entitled to recover: 1st. Because the injury was by a running train and the defendant has not overcome the prima facie liability. 2nd. The injury was in an incorporated town and the train doing the injury was running at a much greater speed than six miles an hour. 3rd. Even if the negligence of the deceased were conceded the case should have gone to the jury on the "comparative negligence" statute.

I therefore respectfully submit that under each, either and all of these statutes the judgment of the lower court should be reversed and the case remanded for a new trial.

Mayes & Mayes, for appellee.

The fact that the train was running above six miles an hour through Batesville is not a controlling fact in this case. It is perfectly well settled by decisions of this court, that, nortwithstanding the six miles statute, the speed of the train cuts no figure in the case, and imposes no liability unless it appears to be the proximate cause of the injury.

This also is perfectly well-settled law in Mississippi. See Clisby v. R. R. Co., 78 Miss. 937, page 947, 948; Railway Co. v. Carter, 77 Miss. 516; Howell v. R. R. Co., 75 Miss. 251; Crawley v. R. R. Co., 70 Miss. 340.

It is clear from the evidence that the speed of this train was not the proximate cause of the injury. The situation occupied by the man and the circumstances under which he was killed, show beyond dispute that he would have been killed all the same by a train running six miles an hour.

The counsel for the appellant in their brief admit that the evidence shows that he was sitting down on the crossties, and that means practically over the rail, hunched up and unconscious, whatever might be the cause of his unconsciousness. They propound a theory about his being struck while standing up, but they admit that it is mere theory evolved by themselves and based alone upon the fact that the man's hat seems to have been carried several miles down the railroad by the train, which is a complete non sequitur.

The statute in regard to the burden of proof in the case of persons injured by the running of railway trains, so strenuously relied upon by Judge LOWREY, does not control this case for the reasons following:

The fact that the railway train was properly equipped and was carefully run was fully proven, and proven beyond dispute in every particular except that of the speed. It was shown that the machinery was running all right; that the crew were in their places attending to their duty; that the headlight was burning all right; that it was a good headlight, etc.

It is true the fireman was fixing his lamp, but that was his duty, and the man was injured at a place where it was not his business to be on the special lookout. The enginneer was on the lookout but the man happened to be on the wrong side for him.

The statute was met in every respect except the matter of speed; and as we have shown above, even if it be true that the restriction of the statute was disregarded in regard to the matter of speed, that fact does not impose liability because the speed was not the proximate cause of the injury. The true proximate cause of the injury was the fact that this man, a trespasser, at four o'clock in the morning, when he ought to have been in bed, was strolling around the right of way not on a public crossing, and took his seat on a crosstie, and there dropped off to sleep, or sunk into a state of stupor, where he was killed. That was the proximate cause of his injury. In fact, it was the sole cause of his injury, because the railroad company was guilty of no negligence, as we have shown above, as to him, it owed him nothing except not to run over him consciously.

In conclusion, it cannot be said that the argument submitted by us above, and our position, is an attempt to avoid or sidestep the statute abolishing contributory negligence as a defense.

We are not relying defensively on this man's contributory negligence. Our position is that there was no negligence shown in the case of the railway company of such nature as that the plaintiffs are entitled to have it charged up against the railroad company to begin with.

First. The railroad company owed this man at that time and place no duty whatever except to avoid injuring him willfully when he was discovered as a man in peril.

Second. The running at a rate of speed exceeding six miles an hour cannot be taken as negligence in this case because it is not shown to be the proximate cause of the injury.

Therefore, there is no need to appeal to the doctrine of contributory negligence as a defense. There was no negligence in the case which was legally imputable to the railway company as a causa causans of this unfortunate accident.

Argued orally by P. H. Lowrey, for appellants.

OPINION

COOK, J.

Sam Nixon was found dead on the railroad right of way about...