St. Louis & S.F.R. Co. v. Ault, 15215

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

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 & 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

[101 Miss. 345] 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...