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

• Decision Date: 15 May 1905
• Citation: 86 Miss. 426,38 So. 372
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. TABB BLOCK
• Court: Mississippi Supreme Court

38 So. 372

86 Miss. 426

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. TABB BLOCK

Supreme Court of Mississippi

May 15, 1905

FROM the circuit court of Bolivar county, HON. A. McC. KIMBROUGH Judge.

Block the appellee, was plaintiff, and the railroad company, the appellant, defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

The plaintiff was a fireman on an engine pulling a passenger train. This train was running into the town of Cleveland at the rate of twenty or twenty-five miles an hour, and as it was going into the town it ran into an open switch and collided with a freight train. Just before the collision plaintiff saw the danger, and jumped off the train, and received injuries. He sued the railroad company to recover damages for the injuries sustained. At the conclusion of the evidence the court gave a peremptory instruction for the plaintiff, leaving to the jury only the amount of damages to be awarded. There were verdict and judgment for plaintiff for $ 2,000. Defendant's motion for a new trial was overruled. The opinion of the court contains a further statement of the facts.

Judgment affirmed.

Mayes &amp Longstreet, and C. N. Burch, for appellant.

In this case the company was at least entitled to have the matter submitted to the jury on two questions:

First--Whether the fireman, plaintiff herein, was not guilty of contributory negligence in violating the positive rules of the company; and,

Secondly--Whether he was not guilty of contributory negligence in failing to discharge his duties in keeping a lookout as he should have done.

POINT ONE.--As to his negligence in failing to observe the company's rules:

It was, by express rules of the company, made the business of the fireman to report for duty thirty minutes before the train left; to examine the bulletins and familiarize himself with the contents of the same, and with the methods of operating the train generally; to see that the train orders were observed, and remind the engineers in the event that they were not; and to keep a lookout and generally warn the engineer and remind him about the operation of the engine.

Now, this fireman, the plaintiff, admitted that he did not observe these rules in regard to the bulletin.

The run of this train was from Cleveland to Greenville and back again in the same day. The conductor of the train was examined as a witness and proved that, in the morning, when the train left Clarksdale, the bulletin was up, and he saw it. It contained an order to all trains to reduce speed to ten miles per hour through the south end of the yards at Cleveland.

Now, the record in this case shows, without controversy, that, at the time the accident occurred, this train was running somewhere between fifteen and twenty-five miles an hour; the plaintiff himself puts it "fifteen or twenty miles, maybe faster."Other witnesses put it from twenty to twenty-five miles.

POINT TWO.--Another proposition which should have been submitted to the jury, and a distinct one entirely, was the contributory negligence of the plaintiff in failing to keep a proper lookout. This court has settled, as a general leading proposition, that it is the duty of the engineer and the fireman to keep a lookout in running by or into stopping places, and if they fail to do so, the company is liable to third parties who shall be injured thereby. Yazoo, etc., R. R. Co. v. Mitchell, 83 Miss. 179.

POINT THREE.--A third point is that the plaintiff in this case shows by his testimony that the accident occurred about sunset; that the engine on the side track with which the collision occurred was about two hundred feet north of, and away from, the open switch. He testifies that the first notice which he had of any approaching danger was the fact that the engineer put on the emergency brake; but it was proven by the witness Everett, who was on the train, and was a railroad man, that no air whatever was applied before the wreck.

Here was a direct conflict on this question, which would have gone to the credibility of the plaintiff's testimony; but, notwithstanding the fact, the court gave a peremptory instruction for the plaintiff. The case should have been allowed to go before the jury to say whether they were willing to take this plaintiff's story as he 'told it or not, in view of this conflict and other conflicts in the evidence. It was a conflict on a material point as to the very matter which first attracted his attention to the impending danger and caused him to jump and the time when he did the jumping.

The court will remember that this man was hurt by his jumping, and not by the collision.

POINT FOUR.--Plaintiff also testified, by way of excusing himself for his failure to see these danger signals, that although the switch signal working automatically would have shown red when the switch was open, his view of that signal was obscured because of the fact that the switches were in line, and there was an intervening switch signal which would obstruct his vision. That is what his testimony means.

Now, it was shown that these red lights could be seen three hundred yards; and it was shown that this light was burning red at the time of the accident.

The plaintiff was contradicted on the proposition that these two lights were in line, so that the lower light burning white would obstruct his vision had the upper light at the misplaced switch been burning red. And on this proposition the case should have been allowed to go to the jury, but was not.

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

Plaintiff made out a perfect case of liability. The collision had occurred through the fault of the railroad company's agents, and through no fault of his. If the cause was the engineer's excessive rate of speed and carelessness, then he should recover because of the relation shown between the two, engineer and fireman. It was not his duty to watch out for signals, except "when his other duties did not prevent." His other duties did prevent. Whether the engineer could or should have seen the signal switch and the danger would be most material in case of a suit by the representative of the engineer against the company for damages, but not as concerned the fireman. That the engineer could be charged with fault, and, in fact, even in aid of plaintiff's case here, is shown more plainly by reason of the fact that he violated the company's speed bulletin. If, on the other hand, the cause of injury was the open switch, then certainly the injury was also without fault on the part of the plaintiff, because it was, first of all, an act of negligence beyond the control of plaintiff; and, secondly, it was not the duty of plaintiff to be on the lookout for such dangers, but the duty either of the yard department or the engineer, which latter was the plaintiff's superior officer.

The fireman in this case, Tabb Block, was not a fellow-servant of the engineer, McLain. He was under the orders of the...