Sledge v. Yazoo & M.V.R. Co.
| Citation | 87 Miss. 566,40 So. 13 |
| Parties | BERRY SLEDGE v. YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY |
| Decision Date | 19 February 1906 |
| Court | United States State Supreme Court of Mississippi |
FROM the circuit court of, second district, Tallahatchie county HON. SAMUEL C. COOK, Judge.
Sledge the appellant, was plaintiff in the court below; the railroad company, appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court. The facts are sufficiently apparent from the opinion of the court.
Affirmed.
Harris & Powell, for appellant.
The court below held that the plaintiff was guilty of more than mere contributory negligence. We insist that whether he was or not is a question for the jury.
In the case of Stevens v. Railroad Co., 81 Miss. 195 (S.C. 32 So. 311), the court say: "So many questions are integrated usually into the solution of the question of negligence, it is so necessary to examine all the circumstances making up the solution of the case, that it must be a rare case of negligence that the court will take from the jury."
Now that was a case in which the injured party was a trespasser in the yard of the railroad company, and, looking back, had actually seen the train which struck him bearing down upon him. Stevens had no right to be where he was, and had no right to expect any protection from the railroad company except that it would not wantonly or willfully injure him. Yet the court said in that case that the question should have been submitted to the jury, to determine whether or not Stevens was guilty of contributory negligence--guilty, not of a degree of negligence exceeding contributory negligence, but of a mere contributory negligence, which, in that case, would have barred a recovery.
In the case of Railroad Company v. Watson, this court held that Watson, who was a trespasser, and who ran onto the track of the railroad company while the train was rapidly approaching, stumbled, fell, and was killed, could not be held to be guilty of contributory negligence, as a matter of law. The court held in that case that it was proper to submit to the jury the question as to whether the rate of speed was the proximate cause of the injury. (See 39 So. 69.)
In the case at bar the evidence shows that the train of the railroad company was being operated in flagrant violation of a positive statute in regard to backing trains, and also in violation of the statute in regard to rate of speed in the corporate limits of the town.
Under the decisions which we have cited above, if the question had been one of mere contributory negligence, it would have been for the jury to say whether, under the circumstances, it was. the proximate cause of the injury; but there must, in this case, have been something more than mere contributory negligence to prevent a recovery. As to what is meant by mere contributory negligence is not an open question.
These words have been interpreted in the cases of A. & V. Ry. Co. v. Jones, 73 Miss. 110 (S.C., 19 So. 105); and Pulliam v. Railroad Co., 75 Miss. 627 (S.C., 23 So. 359). In the latter case this court said that the purpose of the legislature in enacting this and similar statutes was to do away with the defense of contributory negligence for parties injured while the railroad company was acting in violation of those statutes.
Mayes & Longstreet, and C. N. Burch, for appellee.
Sledge was guilty of willful and wanton carelessness and negligence in attempting to pass between the cars through the open space of six feet when he knew that still another car was moving down on them. Had he remained where he was, at the corner of the flat car, or had he stepped back instead of attempting to go through, he would not have been injured.
At the time of his injury, appellant was not in the performance of any duty to the railroad company, nor engaged in any service, nor exercising any right, but was merely wandering about at his own free will and choice.
When he reached the opening between these cars, he did not proceed through the opening, but stopped, rested his arm against the flat car, and spent some moments in that position. Had he merely remained in that position, he would not...
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