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

• Decision Date: 08 April 1912
• Docket Number: 15215
• Citation: 58 So. 102,101 Miss. 341
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. J. A. AULT
• Court: Mississippi Supreme Court

58 So. 102

101 Miss. 341

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. J. A. AULT

No. 15215

Supreme Court of Mississippi

April 8, 1912

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

Suit by J. H. Ault 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.

Sykes &amp Sykes and J. W. Buckanan, for appellant, filed an elaborate brief too long for publication covering the points decided by the court and citing the following authorities: Railway Co. v. Jones, 73 Miss. 121; Dowell v. Railway Co., 61 Miss. 532; 1 Labatt on Master & Servant, p. 516; White case, 72 Miss. 19; 8 Am. & Eng. Anno. Cas., p. 3 et seq., Railway Co. v. Deweese, 82 C. C. A. 190, 153 F. 56; Railway Co. v. Bishard, 78 C. C. A. 62; Railway Co. v. Block, 86 Miss. 426; Railway Co. v. Guess, 74 Miss. 170; Railway Co. v. Thomas, 51 Miss. 637; Harris v. State, 50 So. 626; Hampton v. State, 88 Miss. 259; Sheenan v. Kearney, 82 Miss. 702; 3 Wigmore on Evidence, sec. 1958, p. 2603; 2 Wigmore on Evidence, sec. 980, et seq., p. 1108; Railway Co. v. Chiles, 86 Miss. 366; Railway Co. v. Lanning, 83 Miss. 167; Railway Co. v. Williams, 87 Miss. 354-5; Telephone Co. v. Boker, 85 Miss. 493; Wagner v. Gibbs, 80 Miss. 63, sec. 7163; Thompson on Evidence (2 Ed.), p. 246.

Wm. Baldwin and D. W. Houston, for appellee, each filed an extended brief covering all the questions decided by the court but too long for publication, citing the following authorities: Clisby's Railroad, 78 Miss. 943-944; Lake Shore & C. R. R. Co. v. Parker, 131 Ill. 557, 23 N.E. 237, affirming 33 Ill.App. 405; Bucklew v. Central Iowa R. Co., 64 Iowa 603, 21 N.W. 103; Somerset, etc., R. Co. v. Galbraith, 109 Pa. St. 32, 1 A. 371; Mothershed case, 20 So. 67, 26 So. 10; Railroad Co. v. Farr, 94 Miss. 559; Railroad Co. v. Wallace, 91 Miss. 492; Railroad Co. v. Thompson, 64 Miss. 584; Railroad Co. v. Scott, 95 Miss. 43; Hardy v. Railroad Co., 88 Miss. 752; Railroad Co. v. Brown, 77 Miss. 342; Railroad Co. v. Barrymore, 85 Miss. 454; Railroad Co. v. Block, 86 Miss. 434; Railroad Co. v. Barrymore, 87 Miss. 273; Railroad Co. v. Baker-Kansas, 98 P. 804; Railroad Co. v. Bodemer, 139 Ill. 596, 29 N.W. 692, 232 Am. St. Rep. 218; Lacey v. Railroad Co., 81 C. C. A. 362, 152 F. 134; Railroad Co. v. Bryan, 107 Ind. 51, 7 N.E. 807; Railroad Co. v. Lee, 92 Ala. 271, 9 So. 234; Railroad Co. v. Webb, 12 So. 374; Railroad Co. v. Lee, 92 Ala. 262, 9 So. 230; Pipe Works v. Dickey, 93 Ala. 420, 9 So. 720; Railroad Co. v. Chewning, 93 Ala. 29, 9 So. 458; Railroad Co. v. Baker-Kansas, 98 P. 804; Railroad Co. v. Bodemer, 139 Ill. 596; 3 Rapalje and Macks Digest of Railway Law, 273; Railroad Co. v. Turnbull, 71 Miss. 1038; Jones v. Railroad, 72 Miss. 24; Bean v. Railroad, 107 N.C. 731, 10 Am. & Eng. R. R. Cas., 716, 11 Ib. 128, 26 Ib. 203; Railroad Co. v. Harris, 158 U.S. 326; Jones v. Railroad Co., 72 Miss. 31, 109 Ill. 120, 127 Mass. 86, 18 Kan. 58; Doyle v. Railroad, 16 Kan. 58; Peters v. Railroad Co., 39 N.W. 486, and cases cited in notes, 5 Ency. of Ev., 623-4-5 and 8, and notes; Tuner v. City of Newburgh, 16 N.E. (N. Y.) 346; Railroad Co. v. Wood, 14 N.E. 573; Railroad Co. v. Chiles, 86 Miss. 365; Railroad Co. v. Fowler, 30 Am. & Eng. R. Cases (N. S.) (Ill.), 715; Railroad Co. v. Welch, 52 Ill. 183, 4 Am. Rep. 596; Sobueski v. Railroad Co., 42 N.W. 863; Mullen v. Railroad Co., 34 Am. Rep. (Mass.) 349; Lusted v. Railroad Co., 36 N.W. 857, Syllabus; Ryan et al. v. Gross, 12 A. 115; Welch v. Railroad Co., 70 Miss. 20; Railroad v. Kasiscake, 19 Am. & Eng. R. R. Cases (New Series), 407; Shock v. Railroad Co., 52 C. C. A. (5 Cir. App. Miss.) 651; 24 Am. & Eng. Ency. Law (2 Ed.) 318; Railway Co. v. Jones, 73 Miss. 127; Jones v. Railway Co., 72 Miss. ; Railroad Co. v. Harris, 158 U.S. 326, 39 L.Ed. 1003; Railroad Co. v. Jones, 73 Miss. 110; Hilt v. Terry, 92 Miss. 671; American Insurance Co. v. Antrum, 88 Miss. 518; Railroad Co. v. Williams, 87 Miss. 344; Railroad v. Boswell, 85 Miss. 313; Lumley v. Railroad Co., 6 Am. & Eng. R. R. Cases (N. S.) 82; Johnson v. Rowe Ry. & L. Co., 4 Ga.App. 742, and Platt v. Sou. Phote Material Co., same book, 164; Dowell v. Railroad Co., 61 Miss. 519, 432; Railroad Co. v. Block, 86 Miss. 426; Railroad Co. v. Brown, 77 Miss. 338, 29 So. 949; Railroad Co. v. Thomas, 51 Miss. 637; Railroad Co. v. Leighty, 88 Tex. 606, 32 S.W. 515; Lake Shore v. Parker, 23 N.E. 237; Railroad Co. v. Humphreys, 83 Miss. 734; Stevens v. Railroad Co., 81 Miss. 195; Bell v. Railroad Co., 87 Miss. 234; Owens v. Railroad Co., 94 Miss. 387; Railroad Co. v. Dewees, 82 C. C. A. (8th Cir.) 192; Wood v. State, 58 Miss. 741; Railroad Co. v. Wood, 14 N.E. 573; Railroad Co. v. A. P. Alsobrook, ;Wilson v. Railroad Co., 63 Miss. 353; Wagner v. Gibbs, 80 Miss. 61; Reed v. Railroad Co., 94 Miss. 641; Railroad Co. v. Lanning, 83 Miss. 167; Railroad Co. v. Williams, 87 Miss. 344; Bradford v. Taylor, 85 Miss. 409; Railroad Co. v. Farr, 94 Miss. 599; Railroad Co. v. Wallace, 91 Miss. 492; Railroad Co. v. Thompson, 64 Miss. 584; Railroad Co. v. Cobb, 94 Miss. 564; Railroad Co. v. Scott, 95 Miss. 43; Railroad Co. v. Wallace, 91 Miss. 497.

Argued orally by E. O. Sykes, for appellant.

Argued orally by D. W. Houston, for appellee.

OPINION

MCLEAN, J.

The plaintiff was in the employ of the appellant. He was the engineer in charge of appellant's train, known as the New York Limited, a fast passenger train, and plaintiff's run was from Memphis, Tennessee, to Amory, Mississippi. On March 6, 1909, appellee was driving this train, and arrived at Holly Springs, on schedule time, 10:37 p. m. East of Holly Springs, and within less than a mile of the Holly Springs depot, was a side or passing track. A short time before the happening of the injury complained of a freight train of the defendant pulled in on this side track for the purpose of permitting this passenger train to pass, and the train stopped so that the caboose of this train stood about seventy-five feet from the switch, and the track on which the freight train stood was on the left-hand side of the main line; the appellee's position on his engine in passing being on the right-hand side of the engine, which put him to the right of the passing track. The evidence discloses that the employees in charge of the freight train knew the schedule time of the passenger train; indeed, they were required to know this time. As the freight train pulled into the side track, the conductor of the freight train, who was standing at the switch, instructed his brakeman to close the switch. The brakeman, instead of closing the switch, and instead of standing at the switch in order to give signals to the passenger train, went into the caboose, and was in the caboose at the time of the injury complained of. There was no light or signal at the switch to indicate that the switch was open. The conductor of the freight train went to the depot at Holly Springs and there conversed with the appellee, but said nothing to him about the freight train being on the passing track. It was necessary, in order for appellee to take his train out of Holly Springs, to back the train for some considerable distance in order to get upon the main line. After getting upon the main line there was a heavy grade for some distance, over which appellee's train was compelled to go, and in order to make the grade it was necessary to accelerate the speed of the train. After making the grade appellee slowed down his train to about ten or twelve miles an hour, and was at his post of duty keeping a careful lookout, when, a short distance before he reached the switch, he discovered, by the points of the switch, that the switch was open, so as to cause his train to run into the switch track, and at the same time discovering the rear end of the freight train upon this side track. Owing to the curvature of the track, the open switch could not be discovered until the engineer was within a short distance of the switch. Immediately upon making this discovery, the engineer sanded the track, applied his emergency brakes, and did everything possible to stop his train. Having done all that it was possible for him to do in order to protect the passengers, and being unable to avert the impending collision, and realizing that remaining any longer at his post of duty would be unavailing, both the engineer and the fireman leaped from the train. The fireman jumped to the left, and the engineer to the right of the engine. The fireman escaped uninjured. The engineer fell upon his right leg, or buttock, striking the same on or across the iron rail. He was badly bruised, and his whole body shocked and hurt, by the force of the fall. He immediately began to suffer, but continued his run to Amory. Within two or three days thereafter, as a result of the blow, injury, and shock, the whole left side of the appellee became paralyzed. He became a paralytic, the hearing in one ear and sight in one eye practically gone; the evidence showing that he is practically a mental and physical wreck, and that these injuries are permanent. Verdict in the court below was rendered by a jury for the plaintiff in the sum of fifteen thousand dollars, less fifty dollars and interest; the same being amount paid by appellant to appellee in consideration of a release executed by appellee for the injuries.

There is but one count in the declaration, and the negligence complained of is the leaving open, by the employees in charge of the freight train, of the switch leading to the passing track, with the knowledge that this fast passenger train was due and about to pass; and the declaration charges willful wanton, and gross negligence. The defendant pleaded, not only the...