Payne v. Hamblin

• Decision Date: 24 October 1921
• Docket Number: 21904
• Citation: 126 Miss. 756,89 So. 620
• Court: Mississippi Supreme Court
• Parties: PAYNE, Director General, et al. v. HAMBLIN

89 So. 620

126 Miss. 756

PAYNE, Director General, et al. v. HAMBLIN

No. 21904

Supreme Court of Mississippi

October 24, 1921

RAILROADS. Speed of forty-five miles per hour in country held not negligence as to animal on track.

In a suit for damages for killing a mule by a train, running at a speed of forty-five miles per hour, at night, in the country the railroad company is not liable where the engineer did everything reasonably required to prevent the injury after discovering the animal upon the track, the train being properly equipped with appliances in good condition; and this is true even though the headlight was incapable of showing the object on the track at such distance as would enable the engineer to stop his train after seeing it. At such a place night or day, it is not ordinarily, negligence per se to run at a speed of forty-five miles per hour with proper and standard equipment.

HON. W H. POTTER, Judge.

APPEAL from circuit court of Madison county, HON. W. H. POTTER Judge.

Action by Mannie Hamblin against John Barton Payne, Director General, Agent of the United States, and the Illinois Central Railroad Company. Judgment for plaintiff, and the defendant appeals. Reversed, and judgment entered for the defendant.

Judgment reversed.

May, Sanders & McLaurin, for appellant.

The brief for the appellee attempts to demonstrate that the declarations of this court in the Frazier case do not speak the law on the subject, and cites, in support of his contention, numerous Alabama cases. It may be conceded that the Alabama cases cited by counsel are in conflict with the Frazier case, and that the Alabama cases correctly announce the law in the state of Alabama, but since of course, the case may be decided according to the law of the state of Mississippi, Alabama decisions in conflict with the Mississippi decisions do not lead us toward the light.

In the Frazier case, 104 Miss. 372, 61 So. 547, this court, in limiting the rule laid down in the case of Nixon v. Railroad Co., 103 Miss. 412, and Railroad Co. v. Moore, 101 Miss. 768, spoke with deliberation, with clearness and with accuracy, and took pains to restrict the operation of the rule laid down in the Moore case and the Nixon case so that the broad language employed in those cases should not mislead the courts and the bar, and expressly narrowed the language in those cases to the facts of those cases and declared that the rule stated, viz.: that it is negligence to run a train of cars through a populous neighborhood, as, for example, municipalities, at so great a rate of speed that the train could not be stopped within the distance in which an object could be seen on the track, constituted a violation of the statute and amounted to negligence, but that this rule has no application in the case of animals trespassing on the track in the country.

And later, following the sound principle, as announced by this court, declared in the case of Yazoo, etc., R. R. Co. v. Jones, 71 So. 309, that the railroad company was not liable as for negligence in a case practically on all-fours with the instant case. According to the statement of facts appearing in the report of the case, the following is what the record shows: "The appellant's engineman testified that he was running his train about fifty miles an hour in the country and that he was in his proper place on the engine, keeping a lookout ahead, and that his headlight revealed the mules on the track about four or five hundred feet ahead of the train; that the engine was properly equipped and all equipment was working well; that he immediately shut off the steam, blew the stock alarm, and applied the emergency brakes, and did all that he could to prevent the accident, but that the train could not have been stopped in less than twelve hundred feet after the brakes had been applied, and that the mules were struck by the engine before the engine could be stopped; that the train ran about five hundred feet after he first discovered the mules until they were struck; that they were running up the track when overtaken and struck; and that the accident was unavoidable."

On the state of facts, the plaintiff recovered a judgment. The railroad company appealed the case, and in reversing the judgment of the court below, the court said: "There is no obligation on the servants of the company to keep a lookout for trespassing stock. We think the engineman gave a perfectly valid reason for not seeing the mules earlier, and we can find no facts or circumstances warranting a belief that he falsified. We are unable to say that the engineman's statement of the facts is unreasonable in the absence of any evidence tending to a contradiction thereof, and we find no such evidence in the record."

In the Jones case it appeared that the engineer was keeping a lookout ahead, and the headlight of his engine revealed the mules on the track about four or five hundred feet ahead of the train and running away from the train, that the train ran about five hundred feet before overtaking the mules, and that the train running at the rate of speed at which it was running could not be stopped short of twelve hundred feet, more than twice the distance that the mules could be seen on the track. In the instant case, the mules was discovered some two or three hundred feet ahead of the train and the engineer testified that it was not possible to stop the train short of nine hundred feet; that there was nothing he could do to avoid the accident.

In all essential particulars, the Jones case and the instant case are analagous, and for aught that appears they were both gray mules. It will be noted that the Jones case was decided several years after the Frazier case, and is in accord with the principles announced therein, and the court took pains to observe in deciding the case, that the engineman was under no duty to keep a lookout for trespassing stock; and, of course, as the engineer in the present case was under no duty to keep such lookout, it was not negligence for the train equipped with the best headlight obtainable, to be run at such rate of speed through the country as that it could not be stopped within the distance in which the trespassing mule was first observed by the engineman.

We respectfully submit that for the court to affirm the judgment in this case, it must first overrule the Frazier case and the Jones case, thereby rendering negligent the doing of that which was, under those decisions, not negligence when done.

We respectfully submit that the judgment ought to be reversed and judgment entered here for the appellant.

H. B. Greaves, for appellee.

The only authorities which appellant cites to overcome the authority of the Railroad Company v. Moore, 101 Miss. 768, cited and approved in Nixon v. Railroad Co., 103 Miss. 405, is the case of Railroad Company v. Frazier, 104 Miss. 372. We have read the case of Frazier, and we were satisfied, when we wrote our first brief and cited it before we received appellant's brief that that case did not destroy the effect of the other two cases cited by us, as the facts in those cases were not on all-fours with the facts in this case. In the Frazier case the court says, middle page 377, 104 Miss.: "The mule jumped on the track from behind a bank at the end of a cut between thirty and forty feet ahead of the engine, and immediately upon seeing the mule, the engineer applied the air brakes, blew the whistle and did all that could be done to stop the train and prevent the mule being struck."

It is perfectly manifest that in this case the headlight had nothing to do with the accident, as if the headlight had thrown a light a mile up the track, there would have been no possible way for the engineer to have seen the mule before it jumped on the track if the facts stated by the court are correct. The court in that case based its opinion on the case of Railroad Company v. Greaves, 75 Miss. 360. It happens that the writer of this brief was the unfortunate appellee in that case and (disregarding the maxim that, "A man who is his own lawyer has a fool for a client") being over-zealous to press to the jury the fact that the railroad company had no right to needlessly run over horses on the track, drew an instruction which proved to be his undoing. So I submit that a reading of that case would show that the foundation on which the court rested its opinion, does not conflict in the least with this case.

The court in its opinion in the case of Nixon v Railroad, 103 Miss. 412, in quoting from the Moore case did not say "through an incorporated city, town or village." Read the several authorities which hold likewise in other states. We find that...