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

• Citation: 111 Miss. 486,71 So. 757
• Decision Date: 15 May 1916
• Docket Number: 17746
• Parties: YAZOO & M. V. R. Co. v. HUFF ET AL
• Court: United States State Supreme Court of Mississippi

71 So. 757

111 Miss. 486

YAZOO & M. V. R. Co. v. HUFF ET AL

No. 17746

Supreme Court of Mississippi

May 15, 1916

APPEAL from the circuit court of Tallahatchie county, HON. J. B ECKLES, Judge.

Suit by Eddie Huff and others against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Judgment reversed.

James Stone & Son, for appellant.

Gary &amp Rice, for appellees.

OPINION

STEVENS, J.

Appellees recovered a judgment in the sum of five thousand dollars against appellant for the alleged negligent killing of a little negro boy about four years old, the child of appellees. It appears that the little boy went to sleep upon the track of appellant about five miles west of the town of Charleston. At the point where the child was lying there was a considerable curve, and there is testimony showing that the distance the engineer, being on the lookout, might have seen the sleeping child was approximately five hundred feet. The train that caused the injury complained of consisted of five flat cars, heavily loaded with green oak timbers, and was running at the rate of not less than twenty miles an hour. There was a new switch stand in the curve of the track some five hundred and twenty feet or more from the point where the child was lying and near a public road crossing, and, in passing over this road crossing and by this new switch stand before reaching the place of the accident, the testimony shows that the engineer blew his whistle and directed a good deal of his attention to the new switch then being put in there. The evidence discloses that the train was properly equipped with air brakes and otherwise, and that the track was a good one. The engineer says that:

"After I passed this switch, I noticed both my engine and tank were coming all right, and I glanced down the track and saw a small object in the track after I got some distance by this switch stand, and it was several instants before I discovered it was a human. As soon as I discovered it was a human, I put my brakes in emergency, and threw sand upon the rail, and did everything in the world that an engineer could do to avoid the accident."

He also says:

"As soon as I discovered it was an object on the track, I sounded the alarm whistle."

He further says:

"The object did not move; it was lying inside the rails, and its head was towards the middle of the track. It was very hard to see it at all. To show you how small the object was, the pilot of the engine ran over the child, and there was a little bolt in the ash pan, and that hit him in the back of the head. The pilot to the engine is very low to the ground. It passed over this human and didn't tear it up whatever. . . . It never moved a muscle when I blew the whistle; didn't move a muscle at any time. I walked out where I could see it, wishing that I could save it."

The engineer further testifies that it was from three hundred and seventy-five to four hundred feet from the time he put on the brakes until the engine stopped, and that "no human living being could have stopped that train sooner."

At the close of the testimony the court declined to grant a peremptory instruction requested by appellant, but submitted the cause to the jury. It is contended by counsel for appellees that the evidence shows the child was seen by the engineer as he was passing the switch stand; that this switch stand was five hundred and twenty feet or more from the place where the child was lying, and that therefore the engineer was guilty of negligence in not stopping his train earlier. We have examined this record with much patience and care to determine whether there is sufficient conflict in the testimony upon which the jury could predicate negligence. In our judgment the proof fails to show any negligence whatever. The evidence is undisputed that the subject of this most unfortunate accident was a very small negro boy; that he was lying between the rails at a point where there is a pronounced curve in the roadbed; that it was impossible for the engineer to detect or at first discern that the object he saw was a human being; and that when he did first discern...