Louisville, New Orleans & Texas Railway Co. v. Hirsch

| Miss. | Oct 15, 1891

Woods, J.,

delivered the opinion of the court.

The death of one of appellee’s children and the serious disablement of the other resulted from their being run over by a backing train of appellant. There is no controversy touching this fact. The negligence of the appellant is thus made out prima facie, and it becomes its duty to relieve itself of the burden of liability by showing circumstances of justification or excuse. As- matter of fact, the jury which tried the issue below found that appellant’s evidence did not absolve the defendant corporation from liability, and a careful and protracted examination of all the testimony in the record leaves us unable to declare that the verdict is unsupported by the evidence.

In our opinion, the children were not trespassers on appellant’s premises at the time of the occurrence of the wretched catastrophe; they were not on appellant’s grounds by mere permission only^ The location of the depot, with its waiting-room and ticket-office; the place at which the trains uniformely were stopped to receive and disembark all passengers (white persons); the necessity of crossing the grounds and tracks of appellant by passengers taking or leaving its cars at Leland, owing to-the location of the station-house and the laying out of the main line and side-tracks of appellant’s railway at that place, at or near the point of its depot; the fact that no crossing, other than the space in front of the station-house and between it and the contiguous town, had been prepared for or w^s used by either the railroad officials and servants or the general public, for pedestrians, in passing to and fro between the railway station-house and the town adjacent — in a word, the location, lay-out and surroundings of the station-house and tracks must be regarded as an invitation to the public to approach and depart from the depot over and across the short, smooth and convenient space lying between the railway offices and the business street of the town.

It is true some of the witnesses state that the only public crossings at Leland are two, viz.: One beyond Leer Creek from the town-and the depot (whose mention even, in this case, seems idle), and another about six hundred feet northwardly from the station-house and hotel in which the ticket-office and waiting-room were kept, at’1 the -point denominated the Fifth street crossing. Whether any crossing for persons on foot was to be found where Fifth street crossing was intersected by'.the railway tracks seems doubtful, to say the least. 'That a foot-walk had been prepared by the defendant corporation on the west of this crossing, designed to be used by persons passing from the crossing, or the company’s warehouse near the crossing, to the depot immediately across the tracks from the business part of the town, is shown by the evidence of one witness; but that this was known to the public, or any part of it, desiring to embark upon or disembark from trains of appellant does not appear; nor is there any evidence showing that any human being, railway servant or stranger, ever used said prepared walk on the west of the tracks in passing from Leland to the station-house of appellant. It is safe to say that no passenger, stranger to Leland and the railway-buildings and lay-out of tracks, on disembarking at the station-house at that point, either by day or by night, and particularly by night, would have walked up northwardly for six hundred feet on the west side of the lines to the Fifth-street crossing, and there have walked over the tracks, and then have turned southwardly and walked back six hundred feet to the town, when the absence of all beaten and defined walks leading to the town from the depot invited him to use the smooth,'convenient, cindered ground over which the line ran immediately in front of the depot, and beyond which, in immediate reach and view, lay the town.

So inviting passengers to approach its depot in this town, the appellant was under strong'obligation to exercise the utmost care and caution in the movement of its trains and tbehandling of its cars so as to prevent injuries to persons going to or from its offices.

Rid it exercise the utmost care and caution in moving its trains at the time when the injuries complained of were inflicted ? The jury has found that it did not, and the facts are not so clearly and strongly in conflict with this finding as to justify a reversal by us. That the injuries were inflicted by the train of appellant is confessedly shown, and, prima facie, its negligence is thereby made out. Is the evidence clear and convincing that'the injuries were inflicted under circumstances of excuse or justification, whereby the appellant is absolved of wrong ? We are not warranted in so affirming. The harrowing accident occurred in a second, almost in the twinkling of an eye, as appellant’s counsel graphically characterize the time, and every incident connected with or accompanying it transpired in a moment or two, at the outside. The night was dark and the.surroundings unfavorable for exact observation or minute examination. As to the occurrence and its attendant circumstances, there is, as was to have been expected, even from persons altogether truthful and trustworthy, much seeming and some real contradiction. The theory of the appellee was that the children were passing around a motionless train, and, when on the track in front of it, the same was suddenly put in motion, and steam was blown off, and, that in escaping this threatened danger caused by appellant’s servants, the children; in their alarm and confusion, blinded by the glare of the head-light of the train thus suddenly put in motion, and their vision and hearing obstructed and impaired by the steam being blown off by this engine, were caused to come into contact with another train backing down upon another track, which had been hidden from them by a long train of cars whose engine they had undertaken to pass around.

The theory of the appellant was that the children unnecessarily rushed around a motionless engine, and, without using any precaution, recklessly ran upon another train, being, cautiously, and in the usual manner, moved upon another track.

There is evidence to support each of these theories, and the jury might properly have found the facts as contended for by either party; but, having found as the jury did,-the question is, not whether we would have so found, but whether such finding can be said to rest on evidence.

It is contended, further, that the trial court erred in its action upon the instructions asked by appellant and refused. We might content ourselves by saying that the instructions given for appellant fully stated the law for defendant below, and that those refused were properly withheld from the jury. We think it proper to consider the action of the court in refusing appellant’s fourteenth instruction, however, and to show the correctness of such action.

The instruction wholly excludes from the mind of the jury the element of the responsibility of the two children, and of the reciprocal rights and duties of them and the railroad company. The elder child had presumptively arrived at the age when discretion is usually exercised, though not in perfect degree. She, at any rate, was no longer an infant in leading-strings, nor a minor of such tender years as to preclude discretion on her part, and accountability and responsibility proportionate to her discretion. Where the child is not wholly irresponsible, the capacity and experience of such child is to be considered, and whether, in the particular case, the injured minor exercised the care and caution usually looked for in other children of like age and capacity with the one complaining, is a question for the jury’s determination. The wholly irresponsible infant has imputed to it, without limit or qualification, the conduct of the parent, or other person standing in loco parentis, but this is not the rule of reason or law in case of the child who has arrived at an age where capacity and discretion are presumed.

The supposed negligence of Henry Dreyfus is imputed bodily to both children, and any consideration of their capacity, experience and discretion is excluded from the jury. The knowledge of Henry Dreyfus as to the situation of the depot at Leland, the lay-out of the tracks and the movement of trains, is imputed in its entirety to the children. The absolute imputation of the negligence of Dreyfus was improper, and the instruction was erroneous to the extent indicated.

Affirmed.