Southern Railway Co. v. Free

• Decision Date: 18 October 1909
• Docket Number: 13,834
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. JUANITA FREE ET AL

50 So. 442

95 Miss. 739

SOUTHERN RAILWAY COMPANY v. JUANITA FREE ET AL

No. 13,834

Supreme Court of Mississippi

October 18, 1909

FROM the circuit court of Clay county, HON. J. T. DUNN, Judge.

Juanita Free and others, appellees, were plaintiffs in the court below; the railway company, appellant, was defendant there. From a judgment in plaintiffs' favor defendant appealed to the supreme court.

Plaintiffs sued to recover damages for the death of their father, Monroe Free, colored. While walking at night along a traveled pathway on the track of the railway company, within the corporate limits of the city of West Point, plaintiffs' father was struck bye the tender of a locomotive running backward, pulling a long train of cars, and sustained injuries resulting in his death. The first count of the amended declaration alleged that the employes of the railway company in charge of the train were guilty of gross, willful and wanton negligence in the running of the train and that such negligence directly caused the injury resulting in the death. The second count merely charged that such employes, in so running the train, were guilty of negligence which directly caused the injury resulting in the death. The court sustained the railway company's demurrer to the second count but overruled it as to the first count. The plaintiffs declined to amend their second count, and the cause went to trial on the first count to which defendant pleaded the general issue and a special plea charging that the deceased contributed to his death by his own gross and reckless negligence and lack of precaution in walking upon the railway track without permission of the company. Evidence was offered by the plaintiffs that the railway track on which Free was struck and injured had been used by the public generally without objection on the part of the company, for several years and that the company's employes failed to give proper warnings or keep a lookout as the locomotive and train moved along the track and approached the deceased. The engineer and conductor of the train testified that the whistle of the locomotive had been blown a short time before deceased was struck, and that the bell of the locomotive was kept constantly ringing as the train was passing along the track. For the plaintiffs the court below granted the following instruction, referred to in the opinion:

"If the jury believe from the evidence that that part of the track on which Monroe Free was killed, at the time of his death, was constantly used as a foot path by persons coming and going on foot, for a continuous period of many years without objection from the railway company, then the defendant company and its servants are presumed to have had knowledge of such use of the track, and defendant's servants in charge of the train by which Monroe Free was killed had...