Winterton v. Illinois Central Railroad Co

• Decision Date: 27 April 1896
• Citation: 20 So. 157,73 Miss. 831
• Court: Mississippi Supreme Court
• Parties: THOMAS WINTERTON v. ILLINOIS CENTRAL RAILROAD CO

20 So. 157

73 Miss. 831

THOMAS WINTERTON v. ILLINOIS CENTRAL RAILROAD CO

Supreme Court of Mississippi

April 27, 1896

March 1896

FROM the circuit court of the second district of Panola county HON. EUGENE JOHNSON, Judge.

The appellant, Thomas Winterton, was a justice of the peace, and was engaged in hearing a case, in his office in the courthouse, at Batesville, Miss. The courthouse was on the east side of the track of the Illinois Central Railroad Company, and appellant, having adjourned his court, to go home to dinner, was crossing the railroad, going west, when a south-bound gravel train struck him, and inflicted certain injuries upon his person, whereupon he brought this suit to recover damages for the injuries sustained.

On the trial, A. M. Bright testified for the plaintiff that he was present when the plaintiff was injured; that he met the plaintiff at the corner of the courthouse fence, fifteen or twenty yards east of the track, spoke to him, and passed on that he looked back a few moments later, and saw the train just before it struck plaintiff; that the train was very close on plaintiff--too close for him to get over; that the train was running at a speed of about eighteen or twenty miles an hour; that he did not hear the bell ring, but heard the whistle when about fifty yards from where he met the plaintiff; that the train was very close to plaintiff when plaintiff passed on the track; that there was a space of twelve or fifteen feet between the main and side tracks, and that the track was perfectly straight for a considerable distance north from where plaintiff was struck; that a person between the tracks could see the train approaching; that there was no one between the crossing and the plaintiff, as he crossed before he met the plaintiff at the courthouse fence; that, as he crossed, he saw the train coming, and it was then above the cotton-seed houses.

Dr Perkins, another witness for plaintiff, testified as to the nature of the injuries. R. F. Wiley testified for plaintiff that it was about four hundred feet from the place of collision to the farthest cotton-seed house, and about two hundred feet to the nearest; that there were staves piled along the side of the track, and the track was straight for three or four miles northwards; that the train was, he thought, running at a speed of fifteen or twenty miles an hour; and that he did not hear the bell ring. He also verified a map showing that the side track lay to the east of the main track.

The plaintiff then resting, the defendant introduced testimony to much the same effect, and rested, whereupon the court asked if the plaintiff had any further testimony to offer. Counsel for the plaintiff then asked leave to introduce the plaintiff, to explain why he attempted to pass over the crossing at the time and place he did, in rebuttal of evidence by the defendant introduced to show contributory negligence. The court refused to allow this to be done, as the testimony would not be in rebuttal, remarking that the plaintiff should have been introduced in the first instance if his testimony was desired, to which ruling plaintiff reserved an exception. It was then agreed between counsel for the respective parties that the following might go to the jury as though testified to by the plaintiff: "Plaintiff states that he was at the corner of the courthouse yard when he saw the train; that he went towards the track, and, after he got there, he found, to his astonishment, the train was right on him. He looked about when he got to the corner of the courthouse yard, and the train was then at a distance of five hundred feet, and just after he stepped on the track, he realized that the train was on him. " The court then giving the jury a peremptory charge to find for the defendant, the plaintiff excepted, and, from the judgment in favor of defendant, prosecuted this appeal.

Affirmed. Suggestion of error overruled.

L. L. Pearson, for appellant.

The court erred in refusing to permit plaintiff to testify in rebuttal, because, under our statute and as matter of law, the evidence in chief having shown simply the fact of injury--of collision with defendant's locomotive, at the time propelled through an incorporated town at a greater rate of speed than six miles per hour--made out a prima facie case for plaintiff, and devolved upon defendant the burden of showing contributory negligence on the part of plaintiff, as an affirmative defense, and defendant having introduced testimony for this purpose, plaintiff was thereby privileged to rebut the imputation of contributory negligence by any sort of competent testimony. It was not incumbent on him, by his evidence in chief, to show affirmatively that he approached the crossing without negligence, and in the exercise of ordinary and reasonable care. The law presumes this in the absence of proof to the contrary, and makes the simple proof of injury a prima facie case against the defendant, which entitles the plaintiff to recover, unless the railroad successfully carries the burden of exculpatory proof as matter of affirmative defense. Section 1808, code of 1892, and authorities there cited; Railroad Co. v. Hirsch 69 Miss. 126.

The court erred in giving the peremptory charge for defendant. Under the facts in this case, the question as to whether plaintiff was guilty of contributory negligence was peculiarly one of fact for the jury, and not one of law to be passed upon by the court. The evidence for the plaintiff does not show contributory negligence. But it may be answered that there can be no sort of doubt that he could have both seen and heard the train in time to have avoided the injury, if he had only stopped in the space between the main and side tracks, and looked and listened. Certainly, this is true; if this is the arbitrary measure of his duty, then he has no standing in court. Was it, as a matter of law, his duty to have stopped and listened there? The court below thought it was. Is this a correct exposition of the law of this case? If not, the case must be reversed. If it be the law that a person must, at his peril, and without reference to antecedent facts or conditions, stop within a few feet of the track, and look and listen for approaching trains before going on the track, it is impossible for me to conceive a state of case in which a person could be hurt at a crossing and get damages. This is...