Jarrell v. New Orleans & N. E. R., 67 So. 659

Jarrell v. New Orleans & N. E. R.

67 So. 659 | Miss. | 1915

Cook J.,

delivered the opinion of the court.

Appellant sued appellees in the circuit court of .Pearl Biver county for negligently causing the death of his son.

The record shows that appellant and his son, desiring to go from one part of the town of Picayune to another part of the town, were confronted with the choice of walking about a quarter of a mile beyond one crossing and there cross the railroad track, or walking a half mile in another direction to an unblocked crossing, or climbing over or crawling under cars parked along the railroad track for about three-quarters of a mile. "When they approached the track they looked up and down the track, and discovered that there was an unbroken string of cars extending a half *51mile in one direction and a quarter of a mile in the other direction. The nearest public crossing was about one hundred yards from the place where they reached the track, but the string of cars extended over this crossing, and beyond, for a quarter of a mile. They did not see or hear any locomotive, and, believing it would be safe to crawl under the cars, they proceeded to make the attempt. Before they got across, a locomotive, without signal or warning, butted into the string of cars south of the road crossing, and about a quarter of a mile away from the point where they were attempting to cross the track.The string of cars being all connected and a solid mass, the locomotive, when it moved against one end of the string, caused a movement of the whole, including the car under which plaintiff and his son were attempting to cross the track. Thus it was that the son of plaintiff was struck by- the wheels of the car, with the result that he was fatally injured, dying within a few hours. In addition to the facts just stated, it appears from the record that it was the habit of the railroad company to park its cars on this stretch of track, and to habitually disregard the rights of the public by blocking the road crossing just south of the scene of this tragedy. At the close of the evidence of plaintiff which developed the facts just detailed, the court, at defendant’s request, directed the jury to return a verdict in favor of the defendant, which was accordingly done.

The blocking’ of the crossing was a violation of the statute and constituted negligence per se. It seems to us that this negligence directly contributed to the death of this boy. The agents of defendant, consciously violating the law, should have taken every precaution to prevent any injury to others. The record shows that no warning was given — the whistle was not sounded and the bell was not rung. What the employees of defendant in charge of the locomotive were *52doing does not appear. Tbe jury would have been warranted in believing that tbe boy would bave safely passed over tbe track, if the public crossing bad been left open as tbe law required.

Tbe defendant’s employees were negligent, and tbe negligence of the injured boy, if any, does not bar tbe action.

Reversed and remanded.