Howell v. Illinois Central Railroad

75 Miss. 242 | Miss. | 1897

Whitfield, J.,

delivered the opinion of the court.

The testimony shows without contradiction that Solon H. Howell, Jr., was an unusually bright boy for his age; that he was killed by appellee on May 2, and would have been thirteen on his next birthday, June 17; that he was an active boy, expert in jumping on and off moving trains; that be did this for two years before his death, constantly in the day time, and on some few occasions at night; that he had been repeatedly warned by various parties, of the danger of this practice, and that his father had often chastised him for this, and had positively forbidden it; that he heard the boys discussing the risk of attempting to get off the train, which was going through Hazlehurst, at a rate of speed possibly of at least twenty miles an hour; that the boys (most probably Solon also), had been put off near Crystal Springs, and forbidden to re-embark on the train; that they got back on the train — a special through freight, not scheduled to stop at Hazlehurst; that the conductor, in the hearing, of Solon, ordered all the boys again to get off, and upon their refusing to do so unless he stopped the train, said he would give them a sweet ride through Hazlehurst; that he did increase the speed; that Solon knew it was increased; that the train went through Hazlehurst at at least twenty miles an hour; that some of the boys got off as soon as the conductor made this threat; that the others debated whether it was too dangerous to attempt to get off, some thinking one way and some the other; that finally, one made the attempt and got off, and all followed except Solon; that the last one to get off told Solon to be careful, and that the last seen of Solon was that he was standing up on this flatcar, waiting for the last boy to get off who preceded him; that he, attempting to get off or having accidentally fallen off, was in some way probably dragged some little distance,' and found with his head crushed into fine pieces, and his left arm cut near the shoulder to the bone and broken, his under jaws broken, and some other injuries, breathed a few times and died. There was blood and some hair on the rail. The engineer, so it was testified, had told Solon that if he did not stop at Hazlehurst, he would go slow enough for anyone to get off. It was shown without contradiction by some of the boys who got off at Hazlehurst that it was extremely dangerous to make the attempt, and that ‘ ‘ anyone with any discretion at all ’ ’ would know it was dangerous. These are the material facts.

On these facts we think the court could not have done otherwise than give the peremptory instruction.

The controlling question in this case is whether the boy, Solon Howell, Jr., was — -in his situation, and of his age — chargeable with contributory negligence. Ordinarily, of course, this question is one controverted on the facts, and is, hence, ordinarily, to be left to the jury. But where the facts are absolutely without conflict, and all establish capacity sufficient to know and appreciate the peril of his situation, there is nothing on this point to be left to a jury. There is no room for presumptions as to capacity when the proof uncontradictedly shows capacity. The rule is thus stated in Merryman v. C. R. I. & P. R'y Co., 85 Iowa, p. 638: “There are numerous cases which hold that the question of negligence on the part of minors is for the jury to determine, and such is the rule where the ability of the minor to comprehend the result of his acts, and the danger to which they will expose him, is controverted. But this case involves no question of that kind” — there being there, as here, no controversy on that point. And Beach announces the rule thus, sec. 117, Contributory Negligence: “Unless the child is exceedingly young, it is usually left to the jury to determine the measure of care required of the particular child in the actual circumstances of the case. Where there is no doubt as to the capacity of the child to avoid danger, at one extreme or the other, the court will decide it as a matter of law. ’ ’ And see sec. 136. In the Iowa case, mopra, the boy was thirteen; in Newdail v. Tony, 80 Hun, 364, the child was under seven; in Cleveland, etc., R'y Co. v. Fortt, 64 Fed. Rep., p. 831, the boy was over eight years; and in all these cases the court determined, as matter of law, that the minor was chargeable with contributory negligence, and could not recover.

It is immaterial, in this case, what the engineer said, since Solon knew the train would not stop, but was going at an in•creased rate of speed. It is undoubtedly true that contributory negligence is not a defense where the inj ury is caused by an act of the defendant wilfully done. But there must be causal connection between the act causing the injury and the injury. Here, conceding the increasing of the speed to be wilful, there is no causal connection between that act and the injury. It was not the rate of speed which caused the injury, but getting off, or attempting to get off, or falling off in attempting to get off, in the face of that rate of speed. .Had the boy remained on, there is no room to believe the injury would have occurred.

It is said that it is not shown how the boy came to his death. It is true that that is not very clearly shown. But it is shown that he was last seen standing up, waiting for the last boy who preceded him to climb around and down, and jump or drop off, and that he knew it was dangerous, extremely dangerous, to do that, and that he was dragged some little distance, the injuries being of the character stated — either having voluntarily attempted to get off or accidently fallen off. In either case the appellee would not be liable. It did not force him off, as in Phillips’ case, 64 Miss., 493. It owed him, a'trespasser, no duty, save not wilfully to injure him. Where it is shown that one is a trespasser, and is injured by the running of the cars at a greater rate of speed than six miles an hour through an incorporated town, neither fact is determinative. The trespasser is not precluded from recovery on the sole ground that he is a trespasser, nor is the railroad company liable solely because it is violating the law as to speed.

Trespassers cannot recover for mere negligent injury. But whilst it is true here that the boy was injured by running-cars, it is also shown that he was not injured because they were running, but because he attempted to get off voluntarily, or accidentally fell off. It was the getting off or falling off that caused the injury — without which it would not have occurred. Brantley, in Phillips’ case, in 64 Miss., 693, neither got off voluntarily, nor fell off as the result of an accident uncaused by the company’s officials. They were cursing him, and forced him off, and he fell off whilst they were thus forcing him off. They directly caused his accidental falling off. The facts here are wholly different.

We have examined all the authorities cited by learned counsel for appellant, but find no conflict between them and the views herein announced. Our sympathies have been deeply enlisted for this unfortunate boy and his parents, and our indignation greatly aroused by the atrocious conduct of this conductor in increasing the speed of this train, as he manifestly did, but we sit as a court to administer the law, unswayed by sympathy or indignation.

Affirmed.