Hasie v. Alabama & Vicksburg Railway Co.

| Miss. | Oct 15, 1900

Boothe, Special J.,

delivered the opinion of the court.

Appellant brought suit against appellee in the court below to recover damages sustained by a personal injury inflicted by the railway company while the appellant was attempting to cross the bridge and trestle of the company across Pearl river, in the city of Jackson, November 21, 1898. The declaration alleges that he was the servant and employe of the Groton Bridge & Manufacturing Company, which, at the time of the injury complained of, was constructing piers for a new bridge for defendant in close proximity to the bridge then in use, and that the servants of the Groton company used the railroad bridge as a way to and from their work of construction, and as occasion required, with the knowledge and consent of the resident engineer of the railway company, who was superintending the work in progress; that appellant, the engineer and servant of the Groton company, was going over said bridge and trestle to perform .some duty in respect to said piers when he was struck by the locomotive and train of appellee, running at an excessive rate of speed, knocked off the trestle and permanently injured. To this declaration appellee pléaded the general issue and contributory negligence. To the plea of contributory negligence there was a demurrer, which was overruled, after which issue' was taken on same. This demurrer was properly overruled.

It appears from the evidence that the train by which appellant was inj ured was on its way from west to east across Pearl river; that the wind was briskly blowing in the opposite direction; that there was a sharp curve in the railroad track near the bridge; that plaintiff looked back before going on the bridge, but saw and heard no train; that, after going about fifty steps on the trestle leading to the bridge, appellant looked back and saw the train approaching, and at once made an effort to escape' from his perilous position, but was knocked off or fell off, and that, in rounding the curve, no whistle was blown and no bell rung to give warning of danger, the air brake in emergency was not applied, no sand was used and the engine was not reversed. It is also in proof that the servants of the railway company endeavored to stop the train to avert injury and did all in their power. As to this and the speed of the train there was some conflict.

It is apparent from an examination of the whole record that the questions raised by the pleadings were properly submitted to the jury, and it follows logically that, if there is no error on the part of the learned trial judge, the verdict and judgment ought to be affirmed. We cannot sustain the first, second, third, fourth and sixth assignments of error.

The fifth assignment of error is that the court erred in granting appellee’s first, second, third and fourth instructions. As to this assignment of error we hold that the second charge was erroneous, but the error is cured by the fourth instruction given for appellant. The first and fourth instructions are erroneous in this: that the question of contributory negligence in both instructions is predicated upon an untenable hypothesis. In both instructions the plaintiff below, and appellant here, is called upon to assume that, if he knew or had opportunity to know that defendant’s trains were accustomed to run over the bridge at an excessive rate of speed, they would continue to be so run; and in view of such knowledge, or opportunity of obtaining same, he is, by the terms of these instructions, chargeable with contributory negligence in going on the bridge “without first informing himself that the train had passed over,” is the language of the first instruction; and that he did not “ put out, or cause to be put out, flags or other warnings to notify the train crew that he was on the bridge,” is the language of'the other. It is not sound doctrine to base a question of so much importance as that of contributory negligence in this case upon the untenable foundation set out in these charges, and call upon the plaintiff to assume that, because the railroad company had been accustomed to violate the law, it would do so the morning of the alleged injury. He had a right to assume, from all the surroundings, that the train would be running at the legal rate of speed. While the jury without these charges might have reached the same conclusion, the charges named were well calculated to mislead them. Because of the errors mentioned, the verdict of the jury is set. aside, the judgment of the court below is reversed, and the cause remanded.