Smith v. Illinois Cent. R. Co., 38352

• Decision Date: 12 May 1952
• Docket Number: No. 38352,38352
• Citation: 214 Miss. 293,58 So.2d 812
• Parties: SMITH v. ILLINOIS CENT. R. CO.
• Court: Mississippi Supreme Court

Page 812

58 So.2d 812

214 Miss. 293

SMITH v. ILLINOIS CENT. R. CO.

No. 38352.

Supreme Court of Mississippi.

May 12, 1952.

Henley, Jones & Woodliff, Jackson, for appellant.

Byrd, Ricketts & Wise, Jackson, C. A. Helsell, J. H. Wright, Chicago, Ill., for appellee.

KYLE, Justice.

The appellant, Fred Douglas Smith, a minor of the age of seven years, plaintiff in the court below, sued the appellee, Illinois Central Railroad Company, defendant, in the Circuit Court of the First Judicial District of Hinds County, in an action for damages for personal injuries alleged to have been sustained when the car wheels of one of defendant's railroad trains ran over the plaintiff's right foot as the train was proceeding northwardly along the defendant's railroad track near the Jackson Fertilizer plant, in the City of Jackson, on February 23, 1951. The case was tried before a jury, and at the conclusion of the testimony the court directed a verdict for the defendant. The plaintiff thereupon filed a motion for a new trial, which was overruled by the court, and from the final judgment entered in favor of the defendant the plaintiff prosecutes this appeal.

The pleadings consist of a declaration in three counts and an answer. The first count of the declaration was based upon the prima facie railroad statute, Section 1741, Code of 1942, and charged in general terms that the plaintiff's injuries were proximately caused by the negligent operation of the defendant's train. The second count was based upon the playground theory of negligence, and in that count the plaintiff alleged that the place where the injury occurred was a place where the children of the neighborhood were accustomed to congregate and play, and that this fact was known to the defendant, its agents and servants, and that it was the duty of the defendant to exercise a high degree of care and to keep a lookout to avoid injury to the plaintiff and other children playing upon the defendant's right of way, and that the plaintiff was injured as a result of the defendant's negligence in failing to keep a proper lookout for the plaintiff and other children along that part of the defendant's right of way which was used as a playground. The third count was based upon the attractive nuisance doctrine, and embodied also the playground theory mentioned above.

The defendant in its answer denied that the plaintiff's injuries were proximately caused by any acts of negligence on the part of the defendant, and the defendant denied all of the allegations contained in the plaintiff's declaration relating to the use of a part of its right of way as a playground for children and all allegations made by the plaintiff to support his charge of negligence under the playground theory and the attractive nuisance doctrine.

There is no dispute as to the fact that the plaintiff was injured by one of the defendant's trains, which had left the defendant's railroad yard in the City of Jackson about noon on February 23, 1951, and was proceeding northwardly along the defendant's railroad track near the Jackson Fertilizer Company plant at the time the plaintiff was injured. There was apparently only one eyewitness to the accident, a colored boy, whose name was Bilbo, but who is referred to in the record as Bill; and Bilbo had left Jackson soon after the date of the accident and was not available to testify as a witness during the trial.

Ora Lee Smith, the plaintiff's mother, testified that she lived on Neatum Street, in the City of Jackson, about two blocks from the railroad tracks, and that she was at home washing when Bill brought the message that Fred Douglas had been injured. She sent her older son, Mose Ward, and Bill to the railroad track to bring Fred Douglas home, and when the boy was brought in she found that his foot was badly crushed and was bleeding profusely. She called a doctor and made arrangements to have the boy taken to the hospital. The doctor operated on the foot that night, and half of the foot was amputated. Ora Lee stated that she later visited the scene of the accident and found blood and a part of Fred Douglas' shoe on the track close to the steel rail. She also observed that there was a trial of blood from the place where the boy had been injured to the place on the bank where Mose and Bill had found him. She stated that the child had slipped away from home to play, and that she did not know where he was until she received the news of the accident. She testified that she had warned the child several times against the danger of playing on the railroad track, and that she never knew that he played on the track.

Mose Ward testified that he was at home with his mother when Bill came in and told them about the accident, and that he and Bill went down to the railroad embankment and carried Fred Douglas home. Mose testified that the flesh was mashed off of Fred Douglas' foot and that the bones were exposed. Aaron Mathis, who was also a brother of the plaintiff, testified that children were accustomed to play on the track and along the railroad embankment and dug caves in the embankment; that the railroad employees saw them and did not make them quit; that his little brother, Fred Douglas, caught some crawfish down by the side of the ditch near the track. Aaron was working in the country at the time of the accident, but he and Mose visited Fred Douglas at the hospital on Sunday. In answer to a question asked him on cross-examination by the defendant's attorney, he stated that Fred Douglas did not tell him anything about the accident, but that his big brother did tell him. He was then asked the question, 'What did Douglas tell you?' and his answer was, 'He did not tell me anything. He told me he was down there trying to catch the train,' and that he slipped and fell. The witness stated that was the first time Fred Douglas had ever hopped the train. John Henry Anderson testified that he was 13 years of age, and that he had played with other children in the railroad boxcars on the switch track and up and down the railroad embankment. He stated that when a passenger train went by he and the other children would stand on the hill and wave at the engineer and fireman; and he said, 'I used to hobo on the train, but I did not go far.' He said that other boys did the same thing, but that he never saw Fred Douglas playing on the railroad tracks. Earline Jones testified that she lived in a duplex at the end of Neatum Street; that the area was thickly populated; and that children living in the community were accustomed to play on the railroad embankment and on the railroad crossing and dug caves in the railroad embankment; and that there was a path across the railroad right of way near the point where the plaintiff was injured which was used by people living in the neighborhood.

R. L. Smith, the railroad conductor in charge of the train, was called as a witness by the plaintiff and testified that the train which caused the injury left Jackson about noon headed northwardly toward Yazoo City; that the train was a long freight train, 106 cars in length. He stated that Negro children were accustomed to play on both sides of the railroad track in the area where the accident occurred. He stated that the train was running about 8 or 10 miles per hour when it passed the point where the plaintiff was injured; that he was in the caboose making out his reports at that time; that the flagman was in the caboose with him; and that the engineer, fireman and brakeman were on the engine.

At the conclusion of the plaintiff's testimony the defendant made a motion for a directed verdict, which was overruled by the court.

S. E. Livingston, the engineer, testified that he was seated on the right-hand side of the engine, and was keeping a lookout when he passed through the densely populated area where the plaintiff was injured; that there was no one on the track; and that he did not strike anyone to his knowledge. He saw some children along the embankment on the east side of the track. They were screaming and jumping up and down, like children will do when a train passes. He never saw any of them leave the embankment and go toward the tracks, and he did not know that the accident had happened until he returned to McComb the next day. He testified that the bell was ringing as the train proceeded northwardly; that he did not know how the child was injured; that the children whom he saw were not in a dangerous position.

The locomotive fireman testified that he kept a lookout as he always did and did not see anyone on the track when the train went north on February 23, and that he did not see any colored children playing on the embankment. The brakeman testified that he was seated on the brakeman's seat on the left-hand side of the engine, reading his orders and watching the track and the crossings; that he did not see any children along the track the day the accident occurred, and that the train did not strike anybody so far as he knew. On cross-examination he stated that he had watched the children at times play on the bank, but had not seen them on the track. The flagman testified that he was on the rear platform when the train left the station at Jackson, but at the time the train reached the fertilizer plant he was inside the caboose reading orders; that he saw no one jump off or on the train, and that he saw no one hurt. He inspected the train that day before it left the station and everything about the train was in good order. He stated that he knew that children played on the railroad embankment.

The defendant offered as a witness Miss Frances Yoste Lever, a court reporter, who was permitted to testify, over the objection of the plaintiff's attorneys, that she had gone to the hospital with the defendant's claim agent the day after the accident occurred, and had taken a statement from Fred Douglas Smith while he was in the hospital, and that the child had stated in answer to the claim...