Campbell v. Yazoo & Mississippi Valley Railroad

48 So. 618 | Miss. | 1909

Whitfield, C. .J.,

delivered the opinion of the court.

The pivotal point in this case is whether the company was negligent in the construction of its platform, so as to have the bumper of the engine and the body of the cars themselves project over — that is to say, overlap — said platform, to the extent, at least, of two inches as the cars would go by said platform. There was testimony to the effect that this platform was so negligently constructed that the cars, in going by, would oscillate so as to overlap to the extent of two inches, at least, said platform. The query, therefore, is whether this negligent construction is the proximate cause of this injury, and we think, on the testimony in the record, there was sufficient evidence to send the case to the jury to decide that question of fact.

In the case of Archer v. N. Y., N. H. & H. R. R. Co., 106 N. Y. 589, 13 N. E. 318, it was held in a case like this that the the passenger has the right to act upon the “assumption that every necessary and reasonable precaution would be taken to make the platform safe, that he had a right to regard the platform as a safe and proper place, and that to bring, without notice, a train at such a speed up to a station and into the neighborhood of outgoing and incoming passengers, and so near a platform provided for them as to sweep a portion of it, was negligence.” In the case of Langan v. St. Louis, etc., R. R. Co., 72 Mo. 392, 3 Am. & Eng. R. R. Cases, at page 359 et seq. the court say: “A person, who is wrongfully on the track of a railroad, knowing that a train passing over the track would necessarily pass over him unless he got out of the way, who fails to look and listen for a train, in case of injury, nothing more appearing, . such person would, as a matter of law, be declared to be guilty of such contributory negligence as to prevent a recovery ; but in the case of a passenger awaiting a train on the platform provided by the company for his occupancy the same rule does not obtain; for, being in a place where he is invited to be by the company, he has a right to suppose that he will be safe from collision with a train running on the track so long as he occupies a place on the platform, and the mere fact that plaintiff, while on the platform, did not look behind him for an approachng train, cannot be held evidence of contributory negligence, any more than the failure of a person, struck from behind by a vehicle passing along a street of a city, and knocked into the street and run over by the vehicle, while such person was walking on the sidewalk adjacent to such street, to look behind him for an approaching vehicle, would, as a matter of law, render him chargeable with such contributory negligence as would prevent a recovery for injuries thus received. Negligence is not imputable to a person for failing to look out for danger, when, under the surrounding circumstances, the person sought to he charged with it had no reason to suspect that danger was to be apprehended.”

We think this is the correct view, that the peremptory charge was erroneous, and the judgment is reversed, and the case remanded.