Young v. Columbus & G. Ry. Co

• Decision Date: 10 April 1933
• Docket Number: 30564
• Citation: 165 Miss. 287,147 So. 342
• Parties: YOUNG v. COLUMBUS & G. RY. CO
• Court: Mississippi Supreme Court

147 So. 342

165 Miss. 287

YOUNG v. COLUMBUS & G. RY. CO

No. 30564

Supreme Court of Mississippi

April 10, 1933

Division B

1 RAILROADS.

Whether operators of locomotive failed to give warning signals after they became aware of danger of pedestrian killed on tracks held, under evidence, for jury (Code 1930, section 510).

2 RAILROADS.

If engineer, after becoming aware of presence of trespasser on tracks, does nothing to warn him by sounding whistle and by taking such other reasonable action as would save trespasser from death or serious injury, railroad is liable as for wanton or willful injury.

3 DEATH.

If trespasser's death on railroad tracks resulted from engineer's failure to give warning signals after becoming aware of trespasser's danger, trespasser's administrator was entitled at least to nominal damages, and to have submitted to jury question of punitive damages, even if no actual damages were proved (Code 1930, section 510).

4. APPEAL AND ERROR. Variance between declaration alleging railroad's failure to give statutory crossing signals and proof of failure to give common-law warning to trespasser on tracks after notice of danger held not to require reversal (Code 1930, sections 610, 568, 615).

Though administrator's amended declaration based cause of action solely on allegation that railroad violated Code 1930, section 6125, requiring warnings on approaching public crossing, notices filed by railway company under plea of general issue showed that railroad company was aware that case was actually to proceed on common-law liability for failure to give warning to trespasser on its tracks after railroad' had become aware of the danger, and entire course of trial showed that railway was in no way surprised or misled by the amended declaration, and no demurrer was interposed to amended declaration, and no objection was made to testimony on ground of variance.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Clay county HON. J. I. STURDIVANT, Judge.

Action by Louis Young, administrator of Perry Young, deceased, against the Columbus & Greenville Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Loving & Critz, of West Point, for appellant.

The question as to whether the defendant was negligent under these stated facts is not a question for the court, but a question for the jury, and the court erred in giving a peremptory instruction for the defendant under this statement of facts.

Testimony that a fact did not occur given by a witness so situated that in the ordinary course of events he would have heard or seen the fact had it occurred, is sufficient to warrant a jury in finding that the fact did not occur.

Yazoo & M. V. R. R. Co. v. Beasley et el., 130 So. 499; Columbus & Greenville Railroad Co. v. Lee, 115 So. 782; G. & S. I. R. R. Co. v. Carlson, 137 Miss. 613, 102 So. 168; Grantham v. G. & S. I. R. R. Co., 138 Miss. 360, 103 So. 131; G. M. & N. R. R. Co. v. Hudson, 142 Miss. 542, 107 So. 369.

If the peremptory instruction was given on the ground of the lack of proof of damages, this was manifestly error.

Yazoo & M. V. R. R. Co. v. Barringer, 103 So. 86.

The amended declaration is not predicated alone, if predicated at all, upon the failure of the servants of the appellee to give the statutory public highway crossing signals. The amended declaration complains of the fact that the appellee failed to warn Perry Young of the approach of the train by the giving of any signals without regard to the statutory signals required by the public crossing statute.

The counter notice filed by appellants to the plea and notice under the general issue of the appellee is to be considered, in the consideration of this question, in connection with the amended declaration.

The amended declaration was not demurred to, and there was no attack on the counter notice by motion to strike, or otherwise.

A simple allegation in a declaration that the decedent was killed by the operation or running of a train operated by the defendant states a sufficient cause of action by reason of the prima facie statute, and if the declaration stated no more than this, the defendant was duty bound to exonerate itself from any negligence.

Hudson v. Miss. Central R. Co., 95 Miss. 41, 48 So. 285; Clark v. G. M. & N. R. Co., 97 So. 185.

When persons in charge of a train discover the perilous position of one on the track thereof, a trespasser, it is their duty to use reasonable care to prevent the injury and the failure to do, so is reckless or wanton negligence. Warning to a person seen on a railroad track must be reasonable and timely, but what is reasonable and timely may depend on many circumstances.

Fuller v. I. C. R. R. Co., 100 Miss. 705, 56 So. 783; Kansas City M. & B. R. Co. v. Hawkins, 82 Miss. 209, 34 So. 323; N. O. M. & C. R. Co. v. Harrison, 105 Miss. 18, 61 So. 655; A. & V. R. Co. v. Kelly, 88 So. 707; Edward Hines Yellow Pine Trustees v. Holley, 106 So. 822; Y. & M. V. R. Co. v. Dailey, 127 So. 575.

The admissions of the servants of appellee, that they saw Perry Young when he was three hundred fifty yards ahead of the train on the track, clearly discloses a case for the infliction of punitive damages.

Jamison v. I. C. R. R. Co., 63 Miss. 33; Kansas City M. & B. R. Company v. Hawkins, 82 Miss. 209, 34 So. 323; Fuller v. I. C. R. R. Company, 100 Miss. 705, 56 So. 783; A. & V. R. Company v. Kelly, 126 Miss. 278, 88 So. 707; Edward Hines Yellow Pine Trustee et al. v. Holley, 106 So. 823; Y. & M. V. R. Company v. Dailey, 127 So. 575.

Owen & Garnett, of Columbus, and A. F. Gardner, of Greenwood, for appellees.

The amended declaration displaced the original declaration, and was the sole statement of the plaintiff's demand.

Bank of McLain v. Pascagoula Nat'l Bank, 117 So. 124; 1 Enc. of Pl. & Pr. 625.

It is only where the injury occurs at a crossing that the statute may be invoked.

Y. & M. V. R. Co. v. Cox, 97 So. 7; Skipworth v. Railroad, 95 Miss. 50, 48 So. 964; G. M. & N. R. Co. v. Hardy, 117 So. 536, 539; Shirley v. N.W. R. Co., 147 S.E. 705.

The railroad company is only liable for injuries to bare licensees or trespassers when guilty of gross, wilfull, or wanton negligence.

Illinois Central R. Co. v. Arnola, 78 Miss. 787, 29 So. 768; Y. & M. V. R. Co. v. Cox, 97 So. 7, 8; Richmond v. D. & R. Co., 12 So. 958; Hubbard v. So. Ry. Co., 83 So. 247.

The employees in charge of a railroad train are not bound to stop it every time they see a person on the track. They may not wantonly injure or kill, but they may assume that a man seen on a track, at a place where there is no difficulty in leaving it, will exercise the common instinct of self-preservation, and get off the track before he is reached by the train.

M. & O. R. Co. v. Stroud, 64 Miss. 792, 2 So. 171; Moorehead v. Y. & M. V. R. Co., 36 So. 151.

A failure to use ordinary care and willful and wanton negligence are very different things, and are not equivalent to each other.

So. Ry. Co. in Miss. v. Free, 95 Miss. 739, 50 So. 442; Howell v. Railroad Co., 75 Miss. 242, 251, 21 So. 746.

Before one can be held guilty of "willful" or "wanton and reckless negligence" the facts must show either that the party knew his conduct would inflict injury, or the facts must show that, on account of the attending circumstances, which were known to him, or a knowledge of which he was chargeable with, the inevitable or probable consequences of his conduct would be the infliction of injury, and with reckless indifference to the consequences, committed the act or omitted to perform his duty.

A. G. S. R. Co. v. Hall, 17 So. 176, 179; Birmingham Ry. & Elec. Co. v. Bowers, 20 So. 345, 346; Ga. Pac. Ry. Co. v. Lee, 9 So. 230, 233; 1 Thompson, Commentaries of the Law of Negligence, page 23, sec. 22.

The peremptory instruction was properly given, the plaintiff as sole heir of his deceased brother, absolutely failed to show any damage to himself, and, in fact, negatived damage to himself.

The value of a decedent's life expectancy is not an element of damages to the decedent.

Gulf Refining Co. v. Miller, 150 Miss. 68, 116 So. 295; Natchez Coca-Cola Bottling Co. v. Watson, 133 So. 677.

The damages are measured by the pecuniary loss resulting to the beneficiaries of the action from the death.

Hale on Damages, 426; Rhoads v. Chicago R. Co., A. & E. Ann. Cases, 113; Anderson v. Chicago R. Co., 35 Neb. 95, 52 N.W. 840.

To authorize the infliction of punitive damages, the wrongful act complained of must either be intentional, or result from such gross disregard of the rights of the complaining party as amounts to willfulness on the part of the wrongdoer.

Ill. Cent. R. Co. v. Ramsay, 157 Miss. 83, 127 So. 725, 726; Y. & M. V. R. Co. v. Mullens, 158 Miss. 774, 131 So. 101; I. C. R. Co. v. Owens, 95 So. 833; Meridian Light & Ry. Co. v. Steele, 83 So. 414.

OPINION

Griffith, J.

On the 13th day of December, 1930, about noontime, Perry Young, a colored man, sixty years of age, was walking upon the track of appellee railroad company near what is termed in the record as mile post 39, and was there killed by being run over by the train of appellee company presently to be mentioned. This mile post is approximately seventy yards east of a public crossing. The deceased was going west, and was being followed by a long freight train drawn by two locomotives; such a train being commonly called a doubleheader. The train was maintaining a speed of about twenty-five miles per hour. The engineer of the head locomotive, according to his testimony, saw the deceased when the latter was about two hundred fifty yards ahead of the train. The engineer says that he had already given the whistle signal...