Southern Railway Co. v. Pittman

• Decision Date: 02 May 1910
• Docket Number: 14470
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. ZILPHA PITTMAN ET AL

52 So. 207

97 Miss. 416

SOUTHERN RAILWAY COMPANY v. ZILPHA PITTMAN ET AL

No. 14470

Supreme Court of Mississippi

May 2, 1910

FROM the circuit court of Montgomery county, HON. GEORGE A MCLEAN, Judge.

Mrs Pittman and others, appellees, were plaintiffs in the court below; the railway company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The suit was for the alleged wrongful death of Jesse Pittman, husband of one of the plaintiffs and father of the others. The facts are sufficiently stated in the opinion of the court.

Affirmed.

Catchings & Catchings, for appellant.

The court should have granted the peremptory instruction asked by the appellant. The case of Louisville, etc., R. Co. v Cooper, 68 Miss. 368, fully justifies this assertion. In that case it was expressly announced that the plaintiff who had been injured by being struck by a train while she was crossing a trestle was guilty of contributory negligence in going on the trestle, and not jumping from it when she saw the approaching train. It appeared from the testimony in that case that she, with two other women, were together, and that she knew it was after the time for the passing of the passenger train and supposed it had passed; but that she knew it was sometimes late, and that the three, after discussing the risk incident to such procedure, started across the trestle, but when about half way across discovered that the train was approaching the trestle and was dangerously close to them. In that case the trestle at its highest point was about twelve feet high and near the ends not exceeding three feet.

In the case at bar there is no evidence to show that Pittman knew that the train was about an hour behind time, but it certainly was his duty to know it. A man cannot safely venture upon a railway trestle at any time, for it is always more or less dangerous; and he certainly cannot venture upon a trestle with any sort of claim to recompense in case he should be injured while crossing it, without first ascertaining that no train is expected. The deceased ought to have inquired before going upon the trestle whether any train was due to pass along it. If he had made any effort to find out if the train was late, he would have been told that it was about an hour behind schedule time and would probably cross the trestle at any moment. The fact that it is not shown that he knew the train was behind time and so likely to come at any moment cannot avail as an excuse for the going upon the trestle. As stated by this court in the case above cited, he "went upon the trestle either stupidly and careless of danger, or recklessly calculating that he could safely pass over before a train should come." Again, at the point where he was knocked from the trestle, the distance to the ground is shown to have been twelve feet. As stated by the court in the case referred to in the beginning of this brief, "the trestle was not so high as to make it perilous to leap from, and this plaintiff should have done so."

Again it appears in the case at bar, as in the Cooper case, supra, that all reasonable efforts were made by the engineer to check his engine and avoid the collision. As stated by this court in the Cooper case, supra, "there is no just ground to doubt his statement. He was probably mistaken in supposing, as he says he did, that deceased was on the trestle when he first saw him. Nor is it surprising that he should be mistaken as to this for it is often difficult to determine the exact position of one at a distance." The engineer testified that when he first saw Pittman, he could not tell whether he was on the trestle or the track, but inasmuch as his back was toward the train, the engineer blew his whistle as a warning. The train was running rapidly on a heavy down grade and therefore passed over the distance between the curve where the track became straight and the trestle very rapidly. The engineer further testified that as soon as he saw deceased was on the trestle and discovered his danger, he put on the emergency brakes and kept them on until the train stopped, which it did just after passing over the trestle. The witness further testified that he did not know Pittman was an old man seventy-two years of age, and, indeed, knew nothing of his age or condition; that Pittman became too confused to save himself, if that be assumed, does not affect the liability of the appellant. If deceased was in such a state of mental confusion, as the engineer testified was true, it was directly due to his gross negligence in placing himself in such a highly perilous position, and when the unavoidable accident occurred, the appellant was in no way to blame, and consequently cannot be held legally liable for the accident.

Hill, Knox & Wilburn, for appellees.

The engineer having run his engine over this trestle for some twenty years, and knowing, as shown by his testimony, that it was approximately twenty feet high, was bound to have known that deceased, when upon it, was in a dangerous position. When the engineer saw deceased upon this trestle, it immediately became his duty to exercise reasonable care to prevent striking Pittman.

The engineer did not do all he could reasonably have done to save the life of deceased, for if he had applied his emergency brake when his engine was at the point of the curve where he said it was when he first recognized that the deceased was upon the trestle, he could, according to his own testimony, have easily stopped the train within one hundred yards, and long before his train ever reached the east end of the trestle; and the life of deceased would have been spared.

It was a question for the jury to determine from the testimony in the case and from all the surrounding circumstances which they saw and observed in and about the place where this...