Pulliam v. Illinois Central Railroad Co

• Decision Date: 28 March 1898
• Citation: 23 So. 359,75 Miss. 627
• Court: Mississippi Supreme Court
• Parties: THOMAS PULLIAM ET AL. v. ILLINOIS CENTRAL RAILROAD CO

23 So. 359

75 Miss. 627

THOMAS PULLIAM ET AL. v. ILLINOIS CENTRAL RAILROAD CO

Supreme Court of Mississippi

March 28, 1898

March 1898

FROM the circuit court of Tallahatchie county HON. F. A MONTGOMERY, Judge.

Henry Pulliam, an infant in his seventeenth year of age, was killed by the cars of the railroad company, in December, 1896 within the corporate limits of the village of Oakland, in this state, under the circumstances stated in the opinion of the court. This suit was brought by appellants, brothers of the deceased, for the use of themselves, the other brothers and the sisters, and of the father of deceased, against the railroad company, for damages because of the killing. The deceased did not leave a mother, widow, children, or descendants of children.

Reversed and remanded.

Brewer & Wilson, for appellants.

There were fifteen witnesses introduced in this case, and there is much conflict in the evidence. Six of the witnesses testify that the defendant was making a flying switch at the time they injured Pulliam. Many of the witnesses testify that the train was running over six miles an hour. It is agreed that it was in the municipality of Oakland.

It is never proper to give a peremptory instruction if there is evidence upon which the jury might, with reason, find the contrary. Appellee must rely for a justification upon the negligence of the deceased, which must be more than mere contributory negligence. This court has ruled twice that it is not even contributory negligence as a matter of law, but is a question for the jury, for one to go on a railroad track, in front of flying box cars, under circumstances very much like the case at bar. Railroad Co. v. Summers, 68 Miss. 566; Fulmer v. Railroad Co., 68 Miss. 355. The record discloses that the deceased, in order to escape one flying box car, left the main track and went on to the side track, and was simply crossing that when struck. Under this state of facts, it was a question for the jury, prior to the adoption of the code of 1892, to say he was guilty of contributory negligence, and, since the adoption of that section, certainly there is no room for argument on the point. It is insisted that Pulliam was warned by the brakeman, Henry Clay, when he was up at the switch, to look out, but there is no evidence, except Henry Clay's statement, that he had the warning. Besides, there is a conflict in the proof as to whether it was possible for Henry Clay to have warned him as he says he did. Sections 3542 and 3548 of the code of 1892; Railway Co. v. Jones, 73 Miss. 110; Railway Co. v. Summers, 68 Miss. 556; Fulner v. Railroad Co., 68 Miss. 355; French v Railroad Co., 116 Mass. 537; O'Shield v. Railroad Co., 90 Ala. 29; Brown v. Railroad Co., 32 N.Y. 597; 34 Am. & Eng. Railroad Cases, 69; 42 Ib., 454; 135 Ill. 641; 151 Ill. 237; S Am. & Eng. Enc. L., 73; 58 Ill. 83; 63 Wis. 145; 29 Ia., 37.

W. C. McLean, on same side.

The peremptory instruction was granted upon the idea that the evidence showed that the deceased was guilty of such contributory negligence as to debar any recovery. The rule is settled in this state that such an instruction should never be given when there is any evidence to justify the jury in finding a verdict for the party against whom the instruction is directed. Bedford v. Railroad Co., 65 Miss. 385; Tribette v. Railroad Co., 71 Miss. 227.

Section 3548, code of 1892, provides that the making of a "flying" switch, etc., within the limits of a municipality, shall make the railroad company liable for the damages "without regard to mere contributory negligence of the party injured." This court, in Railway Co. v. Jones, 73 Miss. 110, in construing this statute, says that, in order for the negligence to debar the recovery, it must be wilful and wantonly reckless. The statute does not mean that one who wantonly puts his foot on the rail to have it cut off by a "kicked" car can shelter himself under its term by saying contributory negligence is no defense. The negligence which usually and ordinarily contributes proximately to the injury, without which the injury would not have occurred, consisting in the want of ordinary care in the situation, is what is meant by the statute, not the voluntary, deliberate, wilful, reckless exposure of one's self to injury. We submit that this is a correct interpretation of the statute, and the case at bar comes literally under its terms. The statute says, "without regard to mere contributory negligence"--that is to say, there must be something more than mere contributory negligence. Mere contributory negligence alone is no defense. What is this something else? An intention; a willingness to be injured. No other sound construction can be placed upon the statute.

It was not negligence for the boy to go upon the railroad track, especially at a place where the public were in the habit of using it. Fulmer v. Railroad Co., 68 Miss. 358; Railroad Co. v. McGowan, 62 Miss. 682. We contend that the record shows a clear case against the defendant without the aid of § 3548 of the code. The case at bar is covered by the recent cases of Fulmer v. Railroad Co., 68 Miss. 358; Railway Co. v. Summers, 68 Miss. 566.

J. J. Slack, for appellee.

It is undisputed that the deceased, Henry Pulliam, was coming south airing the railroad track in the northern part of Oakland, and saw a train being cut in two on the main line, and a switch being made, and he was then and there warned by Henry Clay, the switchman, to keep out of the way of the train; that the deceased went from the main track, where he was safe, across the space between the main and side tracks, which was nine feet wide, and where he would have been safe, and got on the side track, where the switching was being done, in full view, and within one hundred and fifty feet, of the whole train, and in face of the previous warning given him by the switchman; that there was a public road or street running along near to and parallel with the railroad track; that there was nothing to obstruct the view nor anything to cause sudden and unexpected fear or excitement; that the switching was being done in broad daylight, and in the usual and customary transaction of the company's business, when the injury complained of occurred; that all of the railroad employes were busily engaged in their several duties at the time, and did not see deceased in time to prevent the injury.

It has recently been decided by this court, in Railway Co. v. Jones, 73 Miss. 110, that the voluntary, deliberate, wilful, reckless exposure of the person injured relieves the railroad company of liability under § 3548, code. Was the conduct of Henry Pulliam such as to indicate voluntary, deliberate, wilful, reckless exposure to danger? In view of the undisputed facts in this case, to ask this question is to answer it in the affirmative. What is meant by these terms voluntary, deliberate, wilful, reckless? They simply mean the conscious action of a free agent, uninfluenced by any fear or sudden surprise, excitement or confusion, and the court intended by these expressions to indicate that they would not hold the railroad liable for injuries which result from the acts of one whose conduct indicates a conscious indifference to danger.

"Wilful, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used is a free agent, and that what has been done arises from a spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and is a free agent." 29 Am. & Eng. Enc. L., 213, 214. It has been held in California not error to instruct the jury that an act is wilful when done with deliberation, and not through surprise or confusion. People v. Sheldon, 68 Cal. 434. Reckless simply implies a deliberate disregard for one's safety.

Mayes & Harris, on same side.

Under numerous adjudications in this state, the fact that the railroad company was violating the law in running its train at a greater rate of speed than six miles an hour, and in making a flying switch, would not deprive the defendant of the defense of contributory negligence in the absence of the statutory provision in reference to flying switches, in regard to the rate of speed, numerous cases have been before this court, and it has been uniformly held that this only constitutes negligence, and that the defense of contributory negligence may be interposed. 70 Miss. 340; 64 Miss. 784; 62 Miss....