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

• Decision Date: 14 March 1904
• Citation: 36 So. 193,84 Miss. 125
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. LILLY I. SCHRAAG
• Court: Mississippi Supreme Court

36 So. 193

84 Miss. 125

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. LILLY I. SCHRAAG

Supreme Court of Mississippi

March 14, 1904

FROM the circuit court of Copiah county. HON. ROBERT POWELL Judge.

Mrs Schraag, the appellee, was plaintiff, and the railroad company, appellant, defendant in the court below.

The death of Samuel Schraag, plaintiff's deceased husband was caused by a collision on the 6th day of January, 1902 just below Vicksburg, on the Yazoo & Mississippi Valley Railroad, between the northbound passenger train, of which Schraag was engineer in charge, and a switch engine then engaged in switching a train of freight cars. The collision occurred about a mile and a half below the Vicksburg depot but within the yard limits of the railroad company, and before the passenger train had reached the corporate limits of the city. At the time of the collision Schraag's engine was running northward, approaching the city, within the yard limits, at a rate of speed variously stated at from eighteen to twenty-five miles per hour. The freight train was going south, and was being pushed by an engine at the rate of about eight or ten miles per hour. The collision occurred at a curve at the apex of a pretty high hill. There was a straight line of road which ran from a tunnel about three-fourths of a mile below the place of the collision nearly up to that point, and there the road curved to the east around the apex of the hill, and then ran straight back to Vicksburg. The evidence showed that the passenger train came out of the tunnel running about twenty-five miles per hour; that the steam was cut off, and the train ran down a grade mainly by its own impetus. While this train was making this run from the tunnel to the place of the collision there was on the other arm of this curve, and below the apex of the hill which was in the bend of the curve, a switch engine, which was working in the yard. This engine was backing upgrade south, pushing a train of thirty-one cars. One witness testified that several parties, some representing the defendant and some the plaintiff, got together and took a couple of engines down to the scene, and located them, and backed them forward and back, and then an engine was located 628 feet below the place of the accident and one at the place of the accident, and that they were then visible to each other; that the engine which was at the point of the accident was then backed northward, and then it passed around the curve of the apex of the hill, and when it reached a point 215 feet north of the point of the accident it passed out of sight of the engine, which was 628 feet below the point; that at the rate of speed at which the two trains were running they would have covered the distance between the two points of observance where neither could be seen by the other in less time than thirty seconds. William Schmidt, a witness for plaintiff, testified: That he lived in Vicksburg, was a fireman by trade, and was working for the defendant railroad company. At the time of the accident he was firing switch engine No. 42, which collided with Schraag's engine. That "all I know is that I told the engineer that it was 6:33 when we coupled to the cars, and not to go out there, and the man following me cursed me and told me all I had to do was to fire the engine, and that was at the lower end of the yard. Mr. Earp, the yardmaster, gave us the signals to get out of the way as fast as we could. I was leaning out of the cab, and I saw No. 11 [Schraag's engine] coming out of the tunnel, and I hollered to the engineer, 'There she comes!' and he did not say anything, and I commenced getting down, and he blowed one short whistle not long before they hit. That Dart, the engineer on the switch engine, is what you call a 'green engine hand'; he had but a few nights' experience--about eight or ten nights." That there was no flag out to warn Schraag, and that, although he was looking for a collision and he saw Schraag's engine, he barely had time to jump, and save his life. That the yardmaster who ordered them out and everybody on his train were immediately discharged after the accident occurred. That, knowing that the switch engine was going out on the time of the incoming passenger train, he kept a constant lookout for that train, and knew his life was in peril, and so informed his superiors. That he had called the engineer's attention to the fact that they were on the time of the passenger train, and that he kept himself where he could see clearly and where he could jump. That there was no flagman protecting the train, and that it was the duty of the railroad company to protect such train by flags on their going out on another train's time, and also to protect the other trains. This witness' attention was called to rules 92, 99 and 99c, found in the book of rules of the railroad company, and was asked if any of these rules were observed to protect Schraag's engine. It was then admitted by counsel for defendant that these rules were not observed, and that defendant was negligent in not observing these rules. Mrs. Schraag, plaintiff, testified that her husband was forty-four years old at the time of his death, and was earning $ 150 per month. For the defendant, W. H. Rowell, the fireman on Schraag's engine, testified that they were running about on time on the morning that the accident occurred; that he was straightening his things around in the cab, and had gotten his broom to sweep the deck of the engine, and was at work at that up to two or three seconds before the accident happened; Schraag put his emergency brake on, and the witness lit out of the gangway; that Schraag did not put on the brake until they were right on the switch engine; that it would take from 600 to 800 feet, with every condition favorable, to stop a train such as Schraag was pulling that morning, on the grade where this accident happened. On cross-examination this witness stated that Schraag blew his whistle just as he came out of the cut, as he always did, shut off the steam, just as usual, and applied the surface air as usual.

"Q. Will you just describe in your own language how this thing happened that morning--what you were doing, and what you saw there?

A. Everything that I saw to the time it all happened was the deck of this engine, until he put the air on the emergency. I kinder slightly looked up at him, and he seemed to be trying to put the reverse lever back, and I immediately went to the gangway, and the engine struck before I could get off.

Q. When you looked up, what did you see Mr. Schraag doing?

A. He was bending over in this position, and it seemed to me that he was trying to pull the lever back.

Q. Did he not have the lever?

A. I think he had hold of it. He was in a position to have hold of it."'

Joe Lilly, a practical railroad engineer, testified, in reference to the rules under which the trains were operated on the Illinois Central Railroad, that a train of the kind Schraag was pulling could be stopped, under favorable conditions, between 800 and 1,000 feet. Holmes Rodgers, a railroad engineer, testified to practically the same thing. P. Ryan, a witness for the defendant, testified that he had been in the employ of the defendant company as a railroad engineer for some time; that a train like Schraag's, with all conditions favorable, might be stopped within 800 feet, but that it was very hard to tell just how far it would take to make an emergency stop; that it was comparatively easy to tell the distance in which the regulation stops could be made, but very difficult to calculate with any degree of precision upon an emergency stop for a train like this; that it might require 1,200 or even 1,500 feet, to use the exact words of the witness, "I would hate to place my calculation on anything on an emergency stop."

"Q. You would not undertake to say, in an emergency stop, that you could stop in any given number of feet?

A. No, sir."

Tom Crammer, a witness for defendant, testified that he was the conductor of the train which was being pulled by Schraag at the time of his death; that Schraag was just a few minutes behind time at the time of the accident, but that was no unusual condition; that Schraag had the right over all trains; that he was a competent and careful engineer, and was making no effort to make up the few minutes which he was behind, and doing nothing out of the usual routine at the time of the accident. There was verdict and judgment for plaintiff for $ 15,000.

Judgment affirmed.

Mayes & Longstreet, and J. M. Dickinson, for appellant.

This suit was brought by the widow. It was based on the constitutional rule in regard to injuries caused by the negligence of co-employes who are engaged in a different department of labor or in a different work, or on a different train. Such a suit cannot be maintained by the widow, even although the company might be liable.

The court will note that this is not a case like the Woolley case, where the injury was charged to have originated by an improperly constructed or otherwise defective track; but, as the declaration expressly avers, the negligence charged is the negligence of the employes of the company in charge of the yard and the switch engine in ordering and permitting such switch train out upon the main line at the time when the northbound passenger train was about due, and thereby producing the collision.

It is clearly such a case as prior to the enactment of the new rule by the constitution could not have been maintained at all; this fact is plainly recognized by the care with which the pleader in drafting his declaration invokes the constitutional language, even putting it in quotation marks.

In this state of the case the law is well settled, and the two...