77 Miss. 511 | Miss. | 1899
delivered the opinion of the court.
It is not every injury inflicted by a railroad train AAdiile running through an incorporated tOAvn at more than six miles an hour for AAdiich the company is liable.
To render the company liable, the speed must be the proximate cause, of the injury. Causal connection between the excessive speed and the injury must be shoAvn.
On the other hand, the general doctrine that the company is not liable to a trespasser except for wilful, Avanton or reckless wrong, is not applicable, and cannot be invoked where a trespasser is injured by a train running more than six miles an hour in an incorporated town, the excessive speed being the proximate cause of the injury. The statute was enacted to prevent the running of trains at a rate of speed exceeding six miles an hour through incorporated, towns for the protection of persons and property, whether the persons are trespassers
The plain letter of the statute, as well as its obvious purpose, alike forbid us to engraft' upon the statute such- an exception.
This distinction as to the liability to a trespasser outside an incorporated town, and within, results from no tenderness towards trespassers, but from the public policy. The statute declares that trains shall, for obvious reasons, not exceed six miles an hour in such case. The determinative questions in such cases are whether the excessive speed was the proximate cause, and whether the plaintiff was guilty of contributory negligence which would bar.
Mere excessive speed will not entitle plaintiff to- recover, unless it be the proximate cause. But if it be the proximate cause, the mere fact of plaintiff being a trespasser does not dis-entitle him to recover. If plaintiff be a trespasser, and guilty of contributory negligence, he is barred, whether trespasser or not. by that contributory negligence, unless the injury be wil-fully, wantonly or recklessly inflicted.
We say this much in response to the assignment of error as to the action of the court in sustaining the demurrer to the third plea, which action was correct. The appellant, however, got the full benefit of the defense set up by the third plea any way, as shown by the third instruction for appellee, and the first, fifth, sixth, and eighth instructions given for the appellant, whereby the questions whether the plaintiff was guilty of contributory negligence, and whether the injury ivas wil-fully, wantonly or recklessly inflicted, and whether it was accidental, were all submitted to the jury, and by the jury settled in favor of appellee.
Affirmed.