Illinois Central Railroad v. Guess

| Miss. | Oct 15, 1896

Calhoon, Sp. J.,

delivered the opinion of the court.

Mr. Guess sued the railroad company for damages for personal injuries, and the company pleaded the general issue, and gave notice of contributory negligence on his part. He recovered judgment, and the company appeals.

His own testimony is that he was an extra engineer of the company, and was called at Water Valley, at night, to make the round trip, with a train of freight cars, from that point to Canton and return. He ascertained that an incompetent fireman would be assigned him for the trip, and he objected, but was told that he had to take that fireman or be discharged. He ascertained that the engine assigned him had no air brakes, as it was customary to have on through freight trains, like the one he was put in charge of. He ascertained, also, that the engine had an insufficient headlight. He had to run by a printed time schedule, requiring him to go only six miles per hour through certain towns, but this rule is not enforced at Pickens station, where the accident occurred. He had orders to have his train under control at telegraph offices, and Pickens was not a night telegraph office. He took his train to Canton, and, on the return trip, with the same engine and fireman, he had twenty-nine cars to pull — a heavy banana train — which train being a through train, with perishable goods, he had few stops to make, and did not have to stop at Pickens.

He arrived, going north, at Vaughan’s station late, and had only eighteen minutes to make Pickens, but he was thirty minutes in making it, on account of the incompetency of his fireman, which made it necessary for him to occasionally leave his post, and fire the engine himself. If the engine had been provided with air brakes, the train could have been stopped in a much shorter space than without them. There were only two brakemen allotted to his train. If he had had air brakes, he says he could have stopped the train before any damage was done, ‘ ‘ especially to myself. ’ ’ The distance between Vaughan’s and Pickens is seven miles.

When he got on the engine at Water Valley everything seemed to be all right, and he had hardly time to investigate before he was compelled to leave, but the headlight did very little good, it being so defective.

When he got to Pickens, on the return trip, he was going a little less than thirty miles per hour, and was running on passenger train time. It was a foggy morning, and in the nighttime when the accident occurred, and he could hardly see at all by the headlight. Just about the time he got in a car length of the switch at Pickens, going north, he saw the switch was wrong, blew for brakes and reversed his engine, but not in time, and it ran into the switch, jumped the track, and caused very serious injury to him.

There was no light at the switch, and no switchman at the station, and it was the duty of the company to have had both, the rules, with which he was familiar, being that a red light at a station, or the display of no light at all, meant danger, and required him to stop his train. He saw no light at Pickens, but the morning was too foggy for- him to see it at the usual distance. The first intimation that he had of danger was when he-saw the switch staff itself, about-one car length from the open switch. He had vacated his seat in order to assist in firing, but had returned to his ‘ ‘ lookout, ’ ’ and says he knew then he must have been right near Pickens. The track towards Pickens, from the south, is straight for one and one-half miles. He says he is familiar with the-rule, No. 65, that a signal imperfectly displayed, or the absence of the signal at its usual place at the station, must be regarded as a danger signal.

Mr. Guess, when he started from Canton to Water Valley on the night of the accident, knew perfectly well the insufficiency of the headlight of his engine, and the absence of air brakes, and the incompetency of his fireman. This knowledge devolved upon him the duty to use the greater care in approaching stations with switches, to keep his train in hand to avoid accidents. Very manifestly he did not exercise ordinary prudence under the circumstances, developed by his own testimony. He knew that, in approaching the switch, it was his duty to look for the danger signal, and he knew that, if there was no light at all at such a place, it was his duty, under the rules of the company, to stop his train, and he so testified. It is immaterial how negligent the company was, so far as the facts of this case develop, because, with the exercise of ordinary prudence, there would have been no accident whatever.

Section 193 of the constitution, and also § 3559 of the code, brought forward in the' amendment of March 11, 1896, expressly except engineers and conductors in charge of dangerous or unsafe cars or engines, voluntarily operated by them, from the provision that knowledge by an injured employee of the defective or unsafe character or condition of machinery or appliances, shall be no defense to an action for injury caused thereby. This exception, applying to engineers and conductors, was manifestly incorporated on grounds of public policy for the protection of human life.

This court has announced that employees — not conductors or engineers — must use ordinary care to avoid injury. Buckner v. Railroad Co., 72 Miss., 873" court="Miss." date_filed="1895-03-15" href="https://app.midpage.ai/document/buckner-v-richmond--danville-railroad-7987731?utm_source=webapp" opinion_id="7987731">72 Miss., 873. Mr. Guess, an engineer, manifestly did not use such care to avoid it, and notwithstanding our sympathy for his suffering, we are compelled to

Reverse and remand this ease, and it is so ordered.