Louisville & Nashville Railroad v. Dick

| Miss. | Mar 15, 1909

Mayes, J.,

delivered the opinion of the court.

The giving of the fifth instruction in this case was error, for which this case will have to be reversed. The instruction makes the railroad company liable for all injuries sustained by the running of a train through the corporate limits of any city, if the locomotive shall have run at a greater rate of speed than six miles at any time whilst in the limits of the city. In other words, if a city be a mile long, and a train approaching the city come in at a rate of speed greater than six miles an hour for the first half mile, and for the second half mile slow down to a lawful rate of speed, and while so running at a less rate of speed than six miles an hour, a person is injured by the train, the railroad company is to be held liable for the injury, just as though they had run the entire mile at a greater rate of speed than six miles per hour. This is not the statute. The statute (Code 1906, § 4043) provides that the company shall be liable for any damage or injury which may be sustained by the locomotive or cars whilst running at a greater speed than six miles. The object of this statute is to have the speed of the train reduced so as to bring the train under perfect control. In the case of Railroad Company v. Toulme, 59 Miss. 284" court="Miss." date_filed="1881-10-15" href="https://app.midpage.ai/document/new-orleans-mobile--texas-railroad-v-toulmé-7985664?utm_source=webapp" opinion_id="7985664">59 Miss. 284, this court held that, even though the train be running at a less rate of speed than six miles per hour at the very time of the impact, still -the company is. liable if it appear that at the time the danger was discovered the train was going at an unlawful rate of speed. In the Toulme case, supra, it is plain to be seen that it was the unlawful rate of speed that caused the injury. In the case of Mississippi Central Railroad Co. v. Butler, 93 Miss. 654, 46 South. 558, this court held that where a train ran through a town at an unlawful rate of speed, and struck an animal just outside the corporate limits of the town, the statute did not apply because the injury must be occasioned whilst maintaining the unlawful rate of speed. The whole purpose of the instruction was to make the railroad company liable, whether the injury inflicted whilst maintaining the unlawful speed or not, if the train had been run at a greater rate of speed than six miles per hour while passing through the corporate limits. If the statute can be so applied, it might just as well be applied to a case where it is shown that the train ran through any town along its route at an unlawful rate of speed. Under this construction of the statute, if at any time during its journey any train had been run at a greater rate of speed than six miles an hour in any municipality along its route, the company would be liable.

The question of liability by this statute is made to depend on the lawfulness of speed at the time the danger is discovered, or should have been discovred if the train had been running at the prescribed speed.

Reversed and remanded.