Illinois Central Railroad v. Lee, 71 Miss. 895

Illinois Central Railroad v. Lee

71 Miss. 895 | Miss. | 1894

Woods, J.,

delivered the opinion of the court.

Conceding, as must be done, that the use of the “horn” switch as a foot-way for twenty-six years was known to and permitted by the railroad company, and that the mother of the appellee was not a naked trespasser, we find ourselves no way advanced in our efforts to solve the real problem which the record before us presents, viz.: Was the deceased guilty of contributory negligence?

*898If she was a licensee, she must be held to have acquired no right to use the foot-way in total disregard of all prudence and caution. She was not authorized to cease to look out for herself when on the track, and assume that the railroad company would use its own otherwise than as it ordinarily and reasonably used its tracks generally. She might use the track, but she must use it with ordinary care. She took her license cum oners. She knew the railroad company used, and was compelled to use, this switch in the usual and regular course of its business, and she was bound to govern herself accordingly, whenever she chose to employ the switch as a walk for her own convenience. It was her duty to use ordinary care to avoid injury from the engines and cars of the company used in the usual manner of conducting its business, and this she did not do.

She saw, on the miserable day when she met her tragic death, an engine, with one box-car attached, pass up this horn switch in the direction of two other box-cars standing-on this switch. If she had heedfully observed, she would have seen the engine stop at these two cars, and she -would have seen, if she had looked even cursorily, that the car attached to the engine did not clear the street down which she was walking, when it was stopped. She must be conclusively presumed to have known that this switching engine would either push the two cars standing on the switch out of the north end of the switch, or back down out of the south end. Ordinary care would have prompted her to watch this suggestive attitu-de of the engine and box-cars, and take some precautions to guard against apparent danger, if she proceeded to get on the track. The simplest care on her part would have sufficed to avoid all dauger, but this simplest care she failed to exercise. She got upon the switch-track without waiting and watching to see whether the* engine was to be driven forward or backward, in the direction -she was to move, and walked, slowly, and without ever looking back, for the short distance of sixty or seventy yards, when the *899backing engine and cars, running only from two to four miles an hour — the speed of the walk of the average human being —struck her, ran over her and killed her. She must have been moving at a snail’s pace, and she must have been profoundly absorbed in thought, or engrossed with some object before her, or possibly in her hand, thus to fail to use any care, even the slightest, to protect herself from a danger that was apparent to any reflecting mind. The unhappy young woman’s own unaccountable conduct contributed directly to her fatal injury, and the jury should have been charged peremptorily to find for the railroad company.

Reversed and remanded.