Owen v. Illinois Central Railroad Co.

• Citation: 24 So. 899,77 Miss. 142
• Court: Mississippi Supreme Court
• Decision Date: 13 February 1899
• Parties: CHRISTOPHER B. OWEN v. ILLINOIS CENTRAL RAILROAD CO

24 So. 899

77 Miss. 142

CHRISTOPHER B. OWEN v. ILLINOIS CENTRAL RAILROAD CO

Supreme Court of Mississippi

February 13, 1899

March 1899

FROM the circuit court, second district, of Panola county, HON. Z M. STEPHENS, Judge.

Owen the appellant, was the plaintiff in the court below; the railroad company, appellee, was defendant there. The facts are sufficiently stated in the opinion of the court. The railroad company had judgment acquitting it from all liability in the circuit court, and the plaintiff appealed to the supreme court.

Judgment affirmed.

Lowrey & Perkins, for appellant.

We have in this case three distinct, separate, good reasons why the defendant is liable to the plaintiff for his injury.

1. It was caused by defective or improper appliances, machinery or loading for which defendant is liable at common law and by constitution and statute.

2. It was caused by the negligence of fellow-servants on a different train of cars, and about different work, etc., for which defendant is liable by constitution and statute.

3. Supposing the testimony of plaintiff as to how the injury occurred is entirely eliminated from the case, and it certainly makes a strong case for him if believed--still the defendant would be liable for the injury, because every circumstance, and the testimony of defendant's witness Standford, point unerringly to the conclusion that plaintiff was hurt by a running train of defendant, and appellee utterly failed to meet the prima facie case thus made out.

Under the rule for giving and refusing peremptory instructions universally adhered to by this court, and so admirably stated in Tribette v. Railroad Co., 71 Miss. 212, we are entitled, we think, to eventually get to a jury in this case.

Mayes & Harris, for appellee.

The judgment is demonstrably correct if it be still the law in this state that it is necessary for a plaintiff to make a case against a defendant before a recovery can be had.

The plaintiff is the only witness who undertakes to show how he was hurt. He says, "I was on guard at a trestle in Yacona bottom; that was during the high water. We had been there from Tuesday morning until Saturday night. On Saturday night, about 12 o'clock, we heard a train coming, and Frank said to me, 'I believe that I will go down and look at that trestle which is down below us.' I said, 'Wait a minute and I will go with you, ' and he says, 'No, I want you to stay here and flag this train, ' and when the train whistled I began to flag, and the train did not seem to stop, so I stepped off to the side as far as I could to keep out of the way of the train. After the engine had passed me, I was standing up there not thinking of anything hurting me, when something struck me right here, and I didn't know a thing after that."

When he was struck he was about ten feet from the trestle, and was three or four feet from the track.

The plaintiff does not even say that any of the things stated in the declaration hurt him. Something hurt him, but he knows not what, and does not pretend to say.

Surely this court will not say that this case should be submitred to a jury on such pleading and such proof.

The plaintiff was an employe, and, therefore, under wellsettled rules in this court, no presumption of negligence arises from injury caused by the running of the trains. Dowell v. Railroad Co., 61 Miss. 519; Railroad Co. v. Hughes, 49 Miss. 258; Short v. Railroad Co., 69 Miss. 848.

There is no presumption that any one of the supposed causes of injury existed. The plaintiff must prove negligence. Railroad Co. v. Cathey, 70 Miss. 332; Short v. Railroad Co., 69 Miss. 848; Railroad Co. v. Hart, 61 Miss. 468.

Who struck Chris Owen? What hit him? Must it be left for the jury to grope in the dark for...