Young v. Southern Railway Co.

• Decision Date: 18 April 1910
• Docket Number: 14532
• Citation: 97 Miss. 483,52 So. 19
• Court: Mississippi Supreme Court
• Parties: JAMES YOUNG ET AL. v. SOUTHERN RAILWAY COMPANY

52 So. 19

97 Miss. 483

JAMES YOUNG ET AL. v. SOUTHERN RAILWAY COMPANY

No. 14532

Supreme Court of Mississippi

April 18, 1910

FROM the circuit court of Washington county, HON. JAMES M. CASHIN Judge.

Young and another, appellants, were plaintiffs in the court below the railway company, appellee, was defendant there. From a judgment sustaining a demurrer to plaintiffs' amended declaration and dismissing the suit, plaintiffs appealed to the supreme court. The facts averred in the amended declaration are these:--

The railway company had for several years maintained dwelling houses, constructed of old box cars, for use and occupancy by its employes, quite near to and fronting upon the tracks. The usual way of ingress to and egress from these houses was over and across the company's railroad tracks, and the children of its employes occupying the houses had been accustomed for several years to play upon the tracks opposite the houses, and this was known to the railway company. The child of an employe, residing in one of the houses, was killed while playing upon the railway tracks opposite the houses by the negligent management of one of the company's trains.

Reversed and remanded.

Lamar Watson and Hugh C. Watson, for appellants.

The amended declaration presents a good cause of action against the railway company, and the demurrer thereto should have been overruled. Pascagoula, etc., Ry. Co. v Brondum, 96 Miss. 28, 50 So. 97; Code 1906, § 1985; 3 Elliott on Railroads, section 1250, note 23; Ib. section 1257, note 81; Southern Ry. Co. v. Donovan, 84 Ala 141, 4 So. 142; Alabama Ry. Co. v. Guest, 144 Ala. 373, 39 So. 654; Crawford v. Southern Ry. Co. (Ga.), 33 S.E. 826, 827; Southern Ry. Co. v. Chatham, 124 Ga. 1026, 53 S.E. 692; Thompson on Negligence, section 1726; Illinois, etc., R. Co. v. Murphy (Ky.), 97 S.W. 729; Johnson v. Louisville, etc. Ry. Co., 29 Ky. L. 36, 91 S.W. 707; Fearrons v. Kansas City, etc. Ry. Co., 180 Mo. 208, 79 S.W. 394; Brown v. Boston, etc., R. Co. (N. H.), 64 A. 194; Cassida v. Oregon, etc.; Ry. Co., 14 Ore. 551, 13 P. 438; Norfolk, etc., R. Co. v. Carper (Va.), 14 S.E. 328; Chesapeake, etc., Ry. Co. v. Rogers, 100 Va. 324, 41 S.E. 732; Townley v. Chicago, etc., Ry. Co. (Wis.), 11 N.W. 55.

Catchings & Catchings, for appellee.

Certainly it cannot be held, even under the authorities cited by appellants' counsel, that the railway company was bound to expect that a child two and a half years old would be on its track at this place merely because its parents lived in a cabin near the track and could only depart from it by crossing the track. Certainly the company would not be required to anticipate that the parents of this child would leave it alone and at liberty to wander upon the tracks of the company for any purpose. Certainly if the officials of the company had thought about the matter at all they would have concluded that the parents would have made provision against their two and a half year old child getting on the track, and that consequently they would not have anticipated that they might find it on the track. So that, all the facts being set out in the declaration, it would seem to be clear enough that the rule that a railway company must anticipate the presence of persons on a track at a point where they are in the habit of going on the track can have no application to this particular injury.

Again, the declaration makes out a clear case of the grossest sort of contributory negligence on the part of the parents. While it may be that contributory negligence cannot be imputed to a child two and a half years old, it certainly can be imputed to the parents of the child, who should have made it impossible, by proper care, for the injury to have happened.

The effort to make this child a licensee is certainly remarkable. Whoever heard of a railway company...