106 So. 822 | Miss. | 1926
The appellee was injured while walking along the tracks of the Mississippi Southern Railroad, which is owned and operated by the Edward Hines Yellow Pine Trustees. He lived at Nortac, a sawmill settlement located on the line of this railroad a short distance north *247 of the town of Barth. In going to and from Barth it was customary for the people residing at Nortac to walk along the railroad track, as there was no other convenient walkway. About the time a south-bound local train was due at Nortac, the appellee started down the railroad track toward Barth, and after he had proceeded several hundred yards he was struck by this train and severely injured. The appellee testified positively that he did not leave the track at any time before he was struck, and that he did not hear a whistle or other warning signal, and that he was not aware of the fact that the train was approaching until he was struck. Witnesses for both the appellants and appellee testified that the whistle was blown when the train was approaching the signal board north of Nortac. This was five hundred or six hundred yards from the place where the appellee was injured. The engineer and other witnesses for the appellants testified that the whistle was blown as a signal of warning after the train passed Nortac and as it approached the appellee. Numerous witnesses for the appellee testified that no such warning signal was given. The engineer and other witnesses for the appellants testified that the train was slowed down as it approached the appellee, and that after the warning blasts of the whistle the appellee stepped off the track to a place of safety on the left side of the track, and that he then released the brakes of the train and picked up speed, and, as the train approached the appellee, he suddenly stepped back onto the track immediately in front of the moving train, and that it was then impossible to avoid striking him.
The appellee's testimony is positive that he did not at any time get off the track. The jury adopted the appellee's theory of the case, and, viewing the testimony most favorably for the appellee, it shows that the engineer saw the appellee walking on the track in a place of peril, apparently unaware of the danger, and that he did not sound an alarm or use other precautions to prevent the *248
injury. The engineer admits that he was continuously on the lookout, and that he saw the appellee on the track when the train was five hundred or six hundred yards away from him, and that if he had seen him at the place where the appellee testifies he was walking he would have recognized his danger and could have stopped the train and prevented the injury. Upon these facts we are unable to distinguish this case from that of the A. V.Railroad Co. v. Kelly,
The appellants were granted instructions directing the jury to return a verdict for the defendants "if they believed from the evidence that the sole proximate cause of the injury to the plaintiff was his own negligence in walking on the railroad track," and, "unless they believed from the evidence that the defendants were guilty of such gross negligence as to amount to willfulness and wantonness in striking the plaintiff with the locomotive." They also secured an instruction informing the jury that the plaintiff was guilty of negligence in walking down the railroad track at the time the local train was due, and that, in the event they found that the defendants were guilty of negligence authorizing a recovery, they should reduce the amount of damage allowed in the proportion that the plaintiff's negligence bore to the negligence of the defendants, and the appellants contend that the jury failed to apply this instruction and reduce the damages in proportion to the negligence chargeable to appellee, and that the damages allowed by the verdict of the jury are grossly excessive. The testimony in this record undoubtedly establishes that the appellee was seriously injured, and that he suffered intense pain as a result of his injuries. At the time of his injuries he was sixty-two years of age, and was assisting his wife in running a boarding house which netted about one hundred dollars per month. Several of his ribs were broken, and he was *249 otherwise bruised and injured about his shoulder and head, and, while there was no testimony showing that these injuries were necessarily permanent, he was still incapacitated to perform any sort of labor at the time of the trial in the court below, and if there was not involved the question of contributory negligence, we would not disturb the award of ten thousand dollars damages. We think, however, that this amount would cover full damages recoverable for the injury inflicted. The appellee was grossly negligent in walking down the railroad track for several hundred yards, at a time when he knew a train was due, without looking, listening, or taking any sort of precaution for his safety, and we think the negligence properly attributable to appellee was sufficient to reduce the amount of the verdict at least one-half.
Consequently, if the appellee will remit five thousand dollars of this judgment, the cause will be affirmed; otherwise it will be reversed and remanded.
Affirmed, with remittitur.
