Illinois Cent. R. v. Ash

91 So. 31 | Miss. | 1922

Cook, J.,

delivered the opinion of the court.

Appellee, Mollie Ash, for herself and children, instituted this suit against the Illinois Central Railroad Company seeking to recover damages for the negligent killing of her husband, Henry Ash, and from a judgment in her favor for the sum of tAVo thousand, three hundred and nine dollars and nine cents, this appeal was prosecuted.

The pertinent facts as disclosed by the record are as follows: Henry Ash, sixty-five years of age, was instantly killed by a northbound passenger train of appellant, at a point about one and a half miles south of Sardis, Miss., at about 3 o’clock in the afternoon, while a very severe Avind, hail, and rain storm Avas raging. The deceased,' his wife, Mollie Asli, his daughter, Gertrude Ash, and his daughter’s two children, were working in a field adjacent to the railroad track when signs of an approaching storm caused them to leave the field and start for their home about a half mile north of where they were working, and in going to their home they chose the railroad track, which was the shortest and best route. While the storm of wind, hail, and rain was at its worst stage, these parties were traveling-north along the railroad track and facing the storm; Gertrude Ash and her children being in front, Mollie Ash some distance behind Gertrude, and the deceased a number of yards further to the rear. The deceased was walking in the middle of the track, with his head down and his hat pulled down over his ears and eyes, and at this juncture the northbound passenger train ran over him, killing him instantly.

The plaintiff’s testimony was to the effect that no alarm ivas sounded and no effort made to stop the train, which ran about a half mile before stopping. Mollie Ash testified that, on account of the noise of the storm, she did not hear the train approaching, and that by accident she looked back and discovered the train, but too late to warn deceased of his peril, and she described the location and position of the deceased at the time he was struck. The deceased was not at or near a crossing when he was struck, and while there was testimony that pedestrians made frequent use of the railroad at this point as a walkway, the proof ivas to the effect that the railroad was used in about the same way and to the same extent as people are accustomed to use a railroad track where it is the most convenient and best route available.

The engineer and fireman testified that at the time the •deceased Avas struck a very severe storm was raging, the rain falling in torrents, and the Avind bloAving it in sheets; that on account of the rain being driven against the cab windows, .and the accumulation of Avater on this glass, coupled with the steam rising from the locomotive, caused by the rain descending on it, they were unable to see the pilot of the locomotive or the track ahead, and were unable to see a man on the track; that they did not see the deceased on the track, and did not knoAv the train had struck anything until they were signaled by the conductor to stop and back up. As to the severity of the storm and the obstruction of the view through the windows of the train by the wind and rain, and the accumulation of water on the glass, they were corroborated by several passengers on the train, some of whom described the rain as almost a cloud-burst, and the wind as having attained almost cyclonic velocity. A passenger who Avas standing at the rear door of the train and looking south discovered that a man had been run over, and he gave notice of that fact to the conductor, and the train was stopped after it had proceeded about a half mile, and it was then backed up to the point of the accident and the body of the .deceased and members of his family carried into Sardis. Some of the witnesses for the plaintiff testified that situated as they were, out in the rain and in an open space, they could see some distance through the storm and rain, and there Avas also some testimony which tended to show that, Avhile the train was being backed up to the point of the injury, a person looking back south could see some distance. doAvn the track'.

At the close of all the evidence the appellant requested the court to instruct the jury peremptorily to find for the-defendant, and the refusal of the court togran t this instruction is assigned as error.

It is clear from the testimony in this record that the deceased was a trespasser on the railroad track at the time he met his death, and, this being true, the defendant owed him no duty except not to willfully or Avantonly injure him after discovering his presence on the track. Counsel for appellee does not dispute this principle, which is established in this state by an unbroken line of decisions; but the contention is made that the testimony for appellee creates a conflict in the evidence from which the jury was warranted in reaching the conclusion that, if the engineer and fireman were at tbeir post of duty, as they say they were, they could have seen, and in fact did see, the deceased in time to have warned him of his peril and avoided striking him.

We do not agree with this contention. Both the engineer and fireman testified that on account of the driving rain, and the accumulation of mist and water on the glass of the windows through which they were endeavoring to look, they could not see the track ahead, could not see as far as the front of the locomotive, and did not see the deceased. The appellee offered the testimony of certain witnesses to the effect* that, situated as they Avere in an open space, with an unobstructed view, they were able to see an object several hundred feet; but this Avas not in contradiction of the evidence of the trainmen that, situated as they Avere, they were unable to see and did not see the deceased, and, in the absence of any evidence in contradiction thereof, Ave are unable to say that the statement of the facts as given by the engineer and fireman is unreasonable, and we do not think there is any evidence Avhich Avould Avarrant a jury in reaching the conclusion that their testimony is untrue.

It follows from these views that we have reached the conclusion that the peremptory instruction to find for the defendant should have been granted, and therefore the judgment of the court beloAV is reversed, and judgment entered here for appellant.

Reversed, and judgment for appellant.