74 So. 135 | Miss. | 1916
delivered the opinion of the court.
Robert Archer was struck and billed by one of the trains of the Illinois Central R. Co. on November 7, 1911, and this suit was instituted by the appellee, his widow, against the company and its conductor and engineer in charge of the train which killed him, to recover damages therefor. This appeal is from a judgment in the widow’s favor.
Archer was a carpenter in the employ of the railroad company at the town of Durant. The railroad tracks at this place run north and south. The yards of the company extend some distance both north and south of its depot building. A street known as “Mulberry street” crosses the tracks at right angles immediately north of the depot, and another, known as “Madison street,” crosses the tracks at the same angle some distance north of Mulberry street. Along the west side of and parellel with the main track of the railroad is a brick walk, which was constructed and is owned by the appellant company, beginning at the depot building and extending north four hundred and thirty-one feet to Madison street. East of the railroad tracks, and immediately south of Madison street, is located the company’s carpenter shop, which is surrounded.by a high board fence, the gate to which fence is ninety feet south of Madison street, and from which there is a walk parallel with the fence and tracks leading to Madison
One of the instructions granted appellee which is complained of by counsel for appellants is as follows:
“No. 10. Although the jury may believe from the evidence that Robert Archer was guilty of such conduct as proximately contributed to his injury and death, yet this is no bar to finding for the plaintiff. ’ ’
By the only instruction granted appellants, the court charged the jury that:
“If they believe from the evidence in this case that Robert Archer walked from the shop, onto the track of defendant immediately north of the coal car and was knocked down and killed by it when it was backed up by the Aberdeen branch train coupling to the tank car, at a time when he knew, or by the reasonable use of his faculties could have seen, that the train was backing up they should find for the defendant.”
In response to the various contentions of counsel for appellants, we will say that:
1.Archer was not empoyed in interstate commerce at the time he was killed. The cause, therefore, is not within the provisions of the Federal Employers ’ Liability Act.
2. Section 4047, Code of 1906, imposes two separate and distinct duties upon railroads: (a) Not to back cars or engines into or along a passenger depot at a greater rate of speed than three miles an hour; and (b) to cause a train of cars, part thereof, or an engine backing at any rate of speed into or along a passenger depot, upon a track passing within fifty feet thereof, for at least three hundred feet before it reaches or comes opposite thereto, to be preceded by a servant on foot, not exceeding forty nor under twenty feet in advance, to give warning.
3. The car which and when it struck Archer was a part of a train of cars within the meaning of section 4047, Code of 1906, which section since the enactment of chapter 194, Laws of 1908, protects railroad employees as well as other persons.
*164 4. The brick walk from end to end was intended for the use of passengers entering and leaving trains, consequently the whole of it is a part of appellant company’s passenger depot (Railroad Co. v. Causey, 106 Miss. 36, 63 So. 336), so that Archer was struck and killed by a car which was then being backed along such depot.
5. The fact that the distance this car was backed may not have exceeded four or five feet, and that probably it could not have been backed more than that distance before striking another car, did not relieve appellant company from the duty of having it preceded by a servant to give warning; and, since it was not preceded by such a servant, it necessarily follows that appellee, because of our concurrent negligence statute (chapter 135, Laws of 1910), was entitled as against appellant company and its conductor, to an instruction peremptorily charging the jury to return a verdict in her favor. Consequently, excepting, that numbered 10, any errors, if any there are, in the instructions granted by the court below to appellee were, as to the company and its conductor harmless.
6. The servants of a railroad company in charge of a' train which is being backed in violation of section 4047 of the Code are themselves, as well as the company, responsible for any damages caused thereby. On the occasion in question the train was in charge of the conduct- or, who preceded it to the point of contact with the tank car. The backing was being done in response to .his signals, and it does not appear — if the fact be material — ■ that the engineer knew, or had cause to suspect, that obeying the conductor’s signals would result in the train or a part thereof being backed without being preceded by a servant of the company on foot to give warning. Consequently, he "did'not participate in the violation of the statute, and it cannot be invoked against him.
7. The granting of appellee’s instruction No. 10 was not an error, in so far as the appellant company and its conductor are concerned, for the reason that it did not preclude the jury from diminishing the damages “in*165 proportion to the amount of negligence attributable to” Archer. It is true that this instruction is in conflict with the only instruction granted appellants, but they cannot complain thereat, for the reason that the instruction to them should not have been given; contributory negligence,because of chapter 135, Laws of 1910, being no longer a bar to a recovery in this class ofcases.
It follows from the foregoing views that as to appellant Thomas, the engineer, the judgment of the court below must be reversed and the cause remanded, and it is so ordered; but as to the railroad company and its conduct- or, Weir, the judgment must be and is affirmed.
Reversed and Remanded.
Affirmed.