Turner v. Southern Ry. Co.

• Citation: 73 So. 62,112 Miss. 359
• Decision Date: 18 December 1916
• Docket Number: 18609
• Court: United States State Supreme Court of Mississippi
• Parties: TURNER v. SOUTHERN RY. CO

73 So. 62

112 Miss. 359

TURNER v. SOUTHERN RY. CO

No. 18609

Supreme Court of Mississippi

December 18, 1916

APPEAL from the circuit court of Alcorn county, HON. CLAUDE CLAYTON Judge.

Suit by Julia Turner against the Southern Railway Company. From a judgment on peremptory instruction for defendant, plaintiff appeals.

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

Judgment reversed and remanded.

Thos Spight and W. A. McDonald, for appellant.

W. H Kier and Earl King, for appellee.

OPINION

HOLDEN, J.

Julia Turner, the appellant, sued the Southern Railway Company in the circuit court of Alcorn county for damages for personal injuries alleged to have been caused by the negligence of the railway company, and from a judgment in favor of the appellee railroad she appeals to this court, and, among other errors assigned for reversal, she contends that the lower court erred in granting a peremptory instruction to the jury to find for the railway company. It appears from testimony in the record that Julia Turner, a negro woman, went to White, Tenn., a flag station on the defendant's railway, for the purpose of boarding one of its passenger trains which passed there at four o'clock a. m. While she was there on the station platform she heard and saw the train approaching, and, in order to stop it so that she might get on, she stood on the track at the station where passengers get on and struck a match, lighting a piece of paper with which to flag the train, and while standing there with the lighted paper in her hand the train passed by the station at a rapid rate of speed, striking her and knocking her to one side, breaking her arm in three places, tearing the flesh therefrom, and injuring her otherwise. The speed of the train was not reduced, no alarm whistle was sounded, nor was there anything whatever done by the engineer to prevent the train from striking appellant. We quote here the testimony of appellant, and also that of John Toney, a witness who testified that he was present with appellant at the station when she was injured. Appellant testified:

"I went down to the depot that morning to get on the train 'The Newsboy,' and was standing right where they get an it and struck the match, and as I went to flag the train it ran right on up, and it just brushed by and hit me on the arm. Had made a light. The paper was burning, but the wind from the train blew it out. The train did not stop. It just brushed right on by. When I knowed anything to do any good, I was between Mr. Holloway's store and the steps. I was lying there where the train hit me, I suppose. The train hit me on my arm. It just deadened me all over. It broke my arm in three places and tore all this off. I can't get it up to my head; it draws back here. I suffer now, and have to take medicine all the time to keep the swelling down on this side."

We will say here that the doctor who attended appellant testified that she received the injuries complained of and was unconscious and in a comatose condition for about twelve hours after the injury.

John Toney testified:

"I was down there to go back to Moscow to work; was going back on the train we call 'The Newsboy,' about four o'clock in the morning. Plaintiff is the woman who was there that morning. She got a match from me and went to the track to strike the match, which she struck on the rail or the ties right on the side of the track; said she had to flag the train. She was on the track when she struck the match. The train was some one hundred and twenty-five or more yards away when she went to strike the match. Just as she got started up from the track the train ran up and blew her light out and the match she had struck, and she went across about ten feet just like I would throw my hat across to the wall. The train had given no signal for that particular station before it struck her. I heard the whistle, which seemed to be further down the road, but not at that place. It was so far down the road I could not tell how far it was, but I heard the whistle. It did not whistle or ring any bell for White station. It did not check its speed at all in passing White station that morning."

The appellee introduced E. O. Mays, the engineer of the train, as a witness in its behalf, and he testified that he was the engineer in charge of the engine on that occasion; that the train was going east and was due at White station at four-eleven a. m.; that his engine had a good electric headlight; that he gave the station whistle and whistled at a road crossing about three-quarters of a mile west of White station; that White station is a flag station; that he received no signal from the conductor or any one else to stop at White's; that he passed through White...