St. Louis & S.F.R. Co. v. Moore

• Decision Date: 06 May 1912
• Docket Number: 15328
• Citation: 101 Miss. 768,58 So. 471
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD CO. v. MRS. IDA MOORE ET AL
• Court: Mississippi Supreme Court

58 So. 471

101 Miss. 768

ST. LOUIS & SAN FRANCISCO RAILROAD CO. v. MRS. IDA MOORE ET AL

No. 15328

Supreme Court of Mississippi

May 6, 1912

APPEAL from the circuit court of Lee county, HON. J. H. MITCHELL Judge.

Suit by Mrs. Ida Moore and others against the St. Louis & San Francisco Railroad Company. From a judgment for plaintiff defendant appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

J. W Buckanan and E. O. Sykes, for appellant.

Clayton, Mitchell & Clayton, for appellees.

No brief of counsel on either side found in the record.

OPINION

MCLEAN, J.

The appellees, who are the widow and children of one L. D. Moore, brought suit against the appellant, alleging that their husband and father was killed by the defendant, through the willful, wanton, and gross negligence of the employees of the defendant, and that the killing occurred within the limits of the incorporated city or town of Nettleton. The suit was for fifteen thousand dollars, and the jury returned a verdict for four thousand, five hundred dollars. The evidence discloses the following facts:

Mr. Moore was killed within the corporate limits of the town of Nettleton, at about twelve o'clock midnight. The deceased had been to Memphis, and had returned that night on the train to Nettleton, and had been drinking to some extent, and was perhaps under the influence of liquor. The train which killed him was not the train on which he returned to Nettleton. Just before his death, he was seen by the engineer and fireman in charge of the train that ran over him, sitting between the rails of the railroad track, and was within less than two hundred yards of the regular passenger depot at Nettleton, and between the depot and the switch to the west of the depot. The train that killed him was going east, and was running, according to the testimony of the engineer and fireman in charge of the train, from thirty to thirty-five miles an hour. The engineer testified that he was on the lookout; that the track was perfectly straight for a distance of from a half mile to a mile west of the point where decedent was killed; that, when he first discovered the man on the track, the engine was about two hundred feet from him; that the night was dark and foggy, and that it was impossible for him to have stopped his train running at that rate of speed within the distance shown by the glare from the headlight of the engine. The headlight was burning brightly, and ordinarily he could see an object on the track for a distance of from two hundred to three hundred yards; that the reason why he did not discover the man on the track that night was because it was dark and foggy, and the fog prevented him from seeing the man.

For the plaintiff the court instructed the jury that, even though they may believe from the testimony that the deceased was guilty of contributory negligence and was a trespasser, notwithstanding if they believe from the evidence that the injury was willfully, wantonly, or recklessly inflicted, the jury should find for the plaintiff. The second instruction related alone to damages. The third instruction related to the form of the verdict. The fourth instruction told the jury that although they may believe from the testimony that the deceased, at the time of the injury, was guilty of contributory negligence, yet if they further believe from the evidence that the deceased was in a position of peril, and the engineer saw his position of peril and appreciated his danger; and that the deceased could not by the exercise of reasonable effort extricate himself from such position in time to have avoided the injury, and that the engineer saw the deceased in such position in time to have avoided the injury by the exercise of reasonable care, and that afterwards said engineer willfully, wantonly, or recklessly ran the train upon the deceased and inflicted the injuries complained of, then they should find for the plaintiff.

For the defendant only one instruction was refused, which was a peremptory instruction to find for the defendant. Instruction No. 1 for the defendant charged that if the jury believed from the testimony that the engineer, as soon as he discovered the deceased on the track, did what he could to stop the train by applying his air brakes in emergency and sanding his track and also sounding the alarm, then the jury should find for the defendant. By the second instruction for the defendant the jury was charged that if the evidence in the case showed that the deceased was guilty of contributory negligence which was the proximate cause of his death, and unless the jury believed from a preponderance of the testimony in the case that the engineer saw the deceased on the track and appreciated his peril at a sufficient distance from the deceased for the engineer to have stopped his train before striking the deceased, and that unless the engineer willfully, wantonly, and recklessly failed to stop the train, then the verdict should be for the defendant. These were all of the instructions that were given for either the plaintiff or the defendant, except instructions as to the form of the verdict, and except as to the elements of damage. The instructions were too liberal for the defendant, but of this defendant cannot complain.

It is manifest from these instructions that the only question that was submitted to the jury as to the liability of the defendant was whether the injury was inflicted through the willful, wanton, or reckless conduct upon the part of the defendant. The evidence in the case is conflicting as to when and from what point the engineer discovered, or could have discovered, the perilous position of the deceased, and as to the character of the night; the testimony for the plaintiff supporting the contention that the night was clear, and that there was nothing to prevent the engineer from seeing the perilous position of the plaintiff at such a point as he could, by the exercise of proper care, have avoided the injury. The testimony on the part of the defendant is to the effect that the night was dark and foggy; but, as the jury has passed upon the question of fact, this court has no power to disturb the verdict.

The ground upon which the defendant based its peremptory instruction is that the night was so dark and foggy it was impossible for the train to be stopped within the distance shown by the glare of the headlight. It may be said that, if the evidence of the defendant is true upon this proposition, it fastens liability upon the defendant. The law is well settled that it is negligence in a railroad company to run its train in the nighttime at such a speed that it is impossible, by the use of ordinary means and appliances, to stop the train within the distance in which obstructions upon the track can be seen by the aid of the headlight of the engine, and that, if anything in surrounding conditions and circumstances suggests an increase of care in the operation of a railroad train to avoid peril and damage, the duty to increase such care proportionately increases. Such is in accordance with the great weight of authority and with the better reason. Central R. R. Co. v. Ingram, 98 Ala. 395, 12 So. 801; Memphis R. R. Co. v. Lyon, 62 Ala. 71; Alabama R. R. Co. v. Jones, 71 Ala. 487; Louisville R. R. Co. v. Gentry, 103 Ala. 635, 16 So. 9; L. & N. R. Co. v. Davis, 103 Ala. 661, 16 So. 10; L. & N. R. Co. v. Cochran, 105 Ala. 354, 16 So. 797; Alabama Midland Ry. Co. v. McGill, 121 Ala. 230, 25 So. 731, 77 Am. St. Rep. 52. In C., N. O. & T. P. R. Co. v. Commonwealth of Kentucky, 126 Ky. 712, 104 S.W. 771, 17 L. R. A. (N. S.) 561, it is held, affirming the rule in L., C. & L. R. R. Co. v. Commonwealth of Kentucky, 80 Ky. 143, 44 Am. Rep. 468, that it is an indictable offense as a common-law nuisance for a railroad, at a crossing of the turnpike, to habitually run its trains at an unsafe and unreasonable rate of speed, and so rapidly as to endanger and injure persons traveling upon a turnpike, without giving warning signals and taking precautions to avoid injuring persons by approaching trains.

All of the authorities above cited are where the train was running in the country through a sparsely settled section, and where no speed limit by law was placed upon a railroad. To run at night a railroad train propelled by the powerful and dangerous agency of steam or electricity through an incorporated city or town, and in violation of the statute, at such a rate as to make it impossible, by the exercise of ordinary care, to stop the train within the distance shown by the glare of the headlight of the engine, must, from the necessities of the case, be regarded and looked upon as reckless conduct. The common law, as contradistinguished from statutory law, is nothing more or less than common sense honestly applied to the practical affairs of life; and it is manifest that to run a train of cars, propelled as aforesaid, at such a dangerous rate of speed, through a populous section of the country, is dangerous in the extreme, well calculated to produce injury, not only to persons on the track, but to the passengers on the train, and may well be characterized as reckless conduct, and such as the law denominates willfulness. In Stevens v. Railroad Co., 81 Miss. 195, 32 So. 311, this court held that it was gross negligence to run a train in the daytime, through a populous portion of a city or town, at a dangerous rate of speed. If this be true, it is even more reckless to run a train at night through an incorporated city or town, and within the yards, at such a rate that it cannot be stopped within the distance shown by the glare of the headlight.

Instruction No. 2, given for the plaintiff, is criticized by appellant upon the following grounds:...