Yazoo & M. V. R. Co. v. Metcalf

• Citation: 84 Miss. 242,36 So. 259
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. EUGENE A. METCALF
• Decision Date: 11 April 1904
• Court: United States State Supreme Court of Mississippi

36 So. 259

84 Miss. 242

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. EUGENE A. METCALF

Supreme Court of Mississippi

April 11, 1904

FROM the circuit court of, second district, Bolivar county. HON A. MCC. KIMBROUGH, Judge.

Metcalf the appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are stated and the code section involved quoted in the opinion of the court.

Affirmed.

Mayes &amp Longstreet, J. M. Dickinson, and Scott, Woods & Scott, for appellant.

The plaintiff was guilty of gross and willful negligence in going upon the railroad track at the hour of the night and under the condition where he was surrounded with impenetrable darkness, and when, by no reasonable presumption, passengers or travelers could be expected to be in or about the depot or upon the tracks of the company.

In this case the plaintiff invokes annotated code of Mississippi sec. 3549, and if this section is applicable, contributory negligence would be no excuse. But can it not be fairly said that reckless conduct on the part of the plaintiff, such as the evidence discloses, should be differentiated from mere contributory negligence and prevent a recovery? R. R. Co. v. Jones, 73 Miss. 123.

However that may be, we submit that sec. 3549 is not applicable to the case at bar.

The spirit as well as the language of the statute will show that it was simply intended to protect those persons who were within fifty feet of a passenger depot at the time they were injured. It is true that the statute requires that where an engine is backing, a servant of the company shall precede it when within three hundred feet of a passenger depot; but this precaution is simply intended as a protection to those persons who are within the statutory limit--to wit, fifty feet of a passenger depot; and if a party is injured beyond that limit, he cannot successfully invoke the statute, although, when the injury occurs, he may be within three hundred feet.

This seems quite clear on a careful analysis and consideration of the object of the act, although the language itself is not altogether free from ambiguity. Some apt illustrations may assist us in construing the law. For instance, if a railroad train, or locomotive, backing, without a servant preceding it as the statute requires, should injure a party when two hundred feet away from a passenger depot, and should instantly stop right where such injury occurred, and pull out in the direction from whence it came, without going nearer such passenger depot, or ever coming within fifty feet thereof, it is very clear that the statute would not apply.

Or, to put it somewhat differently, if the same train, after injuring a party two hundred feet from a passenger depot, instead of stopping and going away from the depot, as just suggested, should keep backing in the direction of that building, but, before getting within fifty feet of it, should take a sidetrack carrying it past the depot, but never within fifty feet thereof, the statute could not be invoked.

Again, suppose there are two tracks passing a passenger depot, one say forty-two feet from it and the other ten feet further off, and that two trains were backing toward the depot, one on each track, disregarding the statutory requirements; and that a man was injured by each of these trains, the injury on the track passing within forty-two feet of the depot occurring at a point two hundred and seventy-five feet away from the depot; while the injury to the man on the other track occurred immediately opposite the depot, within fifty-two feet of it. If the plaintiff's construction of the statute is correct, the man who is two hundred and seventy-five feet from the depot is protected by the additional safeguards mentioned in sec. 3549, while the man who is only fifty-two feet from the depot is not so protected. The mere fact that the locomotive inflicting the injury passed, after such injury was inflicted, within fifty feet of the passenger depot, should not have any significance; and on the whole it seems plain that the whole intendment of the statute was to provide special safeguards for those who were within fifty feet of a passenger depot, and none others.

It is well known that large crowds congregate around and near the passenger depots throughout the state, in the country as well as in the towns and cities; and for this reason it was deemed necessary or desirable to take additional precautions for their protection. The object to be attained by the law was to protect people within the prescribed limits, by requiring the railroad company to observe certain precautions, so that when the backing train or locomotive came within three hundred feet of that building, the parties within the protected zone--to wit, fifty feet--could thus see the warnings when the train or locomotive itself was from two hundred and fifty to three hundred feet away; while the company's servant could see them at a like distance; and so both could have time and opportunity to guard against accidents.

See Railroad Co. v. McCalip, 76 Miss. 367, and note especially the language of Chief Justice Woods, as follows:

"The statute seems intended to compel the railroad company to observe a new rule of care and watchfulness in backing trains within fifty feet of a passenger depot and to afford protection to all persons within the prescribed limits."

Sillers & Owen, and Alexander & Alexander, for appellee.

The track upon which the engine was backing ran within twenty-five feet of the passenger depot. The engine was moving at a rapid rate of speed, without any forerunner on foot to give warning. This section does not mean that no forerunner of the engine or train is needed except when the said engine or train is within fifty feet of the depot. Its meaning is that when a train or engine is backing along a railroad track, which track runs within fifty feet of the passenger depot, then when the train or engine thus backing comes within three hundred feet of the depot there must be a servant running in advance on foot to give warning. This section, like sec. 3546 (concerning trains running over six miles an hour in municipalities), is made for the safety of the public in towns and places where there are many people usually passing along a point over which the railroad train must pass. Our court has always been liberal in its construction of both sees. 3546 and 8549 of the code. For instance, sec. 3549 says that the "railroad company shall be liable for injuries sustained by any one from its locomotive or cars whilst they are running over six miles an hour through a municipality." Our court has decided that this statute governs where the train has been running at an excessive rate of over six miles an hour, as, for instance where stock is killed by a locomotive, although the engine is checked when the animal is seen and strikes it when running at a less rate of speed. Railroad Company v. Toulme, 59 Miss. 284. And under sec. 3549 it is no defense of itself that at the moment of collision the train was running less than six miles an hour. Railroad Company v. Jordan, 63 Miss. 458. The court will liberally construe sec. 3549 in favor of the public for whose protection it was enacted by the legislature. But Metcalf's case is well within the statute. He was only two hundred and sixty-five feet from the passenger depot. The backing engine was to pass within fifty feet of the depot, and did. The statute says that there was necessity for the servant to begin to precede the engine for at least three hundred feet before it reached, or came opposite to, such depot. Inasmuch as the servant may precede the engine "not exceeding forty feet, nor under twenty feet in advance," if the meaning is that there is no necessity for the servant to begin to precede the engine until the engine is within fifty feet of the depot, then the servant (having the right to go as far as forty feet in advance) would have to start only ten feet from the...