51 Miss. 637 | Miss. | 1875
delivered the opinion of the court.
Thomas was an engineer in the employ of the M. & C. R. R. Co. While so employed, a train driven by an engine in charge of Thomas ran off the track, by which he was seriously injured. A suit by him resulted in a verdict against the company for $2,000 damages. Thereupon a writ of error was presented. The following are assigned as grounds of error: Admitting evidence that plaintiff had a wife and two children; permitting testimony as to condition of switch two weeks prior to the accident; instructing jury in the language of plaintiff’s charges; refusing to instruct the jury in the language of defendant’s first and second charges; that the verdict is contrary to the evidence ; that the verdict is against the law of the case ; and in overruling motion for a new trial, on affidavit of surprise, and other causes stated in the motion.
.The application for a new trial gave the following reasons, therefor : Eefusing defendant’s charges; in giving plaintiff’s charges; allowing illegal testimony for plaintiff ; verdict contrary to law; verdict against the evidence; verdict excessive ; surprise ; and in refusing to admit defendant’s testimony.
Thus numerous questions are presented for consideration. It is believed, however, that the solution of this case is found in the testimony of the plaintiff in the action, who was examined as a witness in his own behalf, and testified as follows :
I have been a railroad locomotive engineer for thirteen years, during which time I ran engines upon the defendant’s road; was in defendant’s service as engineer for several years before the war and two years soon after the war; and was again in their service
Without quoting further from the evidence, there are already developed insurmountable obstacles to a recovery by the plaintiff in the action.
1. The rules of the company required engineers to slacken speed to six miles an hour when passing switches. At this rate, the train would have moved “ only about as fast as a man walks.” It requires no evidence to show that at this reduced speed, no- accident could have happened. The engineer, therefore, directly contributed to the accident by which he was injured. The rule is well settled that in such case he is not entitled to recover. V. & M. R. R. Co. v. Wilkins, 47 Miss., 404; M, & C. R. R. Co. v. Whitfield, 44 id., 486, etc. And the rule applies with much greater force to a case like the one at bar, where the plaintiff, who was engineer, was driving his engine at the moment of the acei
2. No switch-tender or guard was employed at the place of the accident complained .of, because it was a flag station. So far as this omission was the cause of the accident, the engineer cannot be heard to complain of it, for the reason that he well knew this rule or practice of the company, and continued in service notwithstanding. In so continuing service, he took all the risks of such omission.
The record also presents other obstacles to a recovery by the engineer, exclusive of all consideration of those based on the rule of contributory negligence. The switch had been used by another servant of the company about an hour before the accident. Suppose the fact of contributory neglect to be out of the case. If the switch was displaced or left out of order by a fellow servant, this fact would be, of itself, fatal to the plaintiff’s recovery, unless the company had- neglected due care in the selection of servants; or, unless their incompetency, or the existence of defective material or machinery, had been brought to the knowledge of the company.
This subject was most patiently, thoroughly and carefully considered in N. O., J. & G. N. R. R. Co. v. Hughes, 49 Miss., 258. See also, Pierce’s Am. R’y L., ch. 13, p. 286; S. & R. on Neg., §§ 5, 12, 13, 86, 87, 99, 109; 1 Redf. L. of R’ys, § 131, p. 517; Saunders on Neg., pp. 12, 13, 14; 55 Penn. St., 460; 9 Allen, 397; 111 Eng. Com. L. R., 669; 25 N. Y., 566; 14 Gray, 466; 20 Mich., 105; 4 Met., 49; 3 Cush., 272; 6 id., 75; 9 id., 112; 14 Gray, 466; 5 N. Y., 492; Couch v. Steel, 77 Eng. C. L., 402; Seymour v. Maddox, 71 id., 326; Tarrant v. Webb, 86 id., 801; Wigget v. Fox, 11 Exch., 832; 5 id., 343; id., 354; 103 Eng. C. L., 429; 101 id., 437; 111 id., 668.
And the result would be the same if the displacement was the work of an intermeddler; the company, being otherwise without fault, would not be responsible to the engineer. S. & R. on Neg., § 280.
Upon the trial, the questions growing out of this testimony occupied a large share of attention, as they do in the argument here, but the views heretofore expressed render these questions, upon the record presented, of secondary consideration.
The rules conclusive of this case may be briefly repeated, viz : Even if the material and machinery of the switch were defective, the company’s servants incompetent, and the switch out of order or displaced, with the full knowledge of the company, nevertheless, the rule as to contributory neglect is fatal to the action. Admitting all this, yet, if, by ordinary care and prudence on the part of the engineer, the accident might have been prevented, he cannot recover.
And the applicability of another rule in this class of cases may be negatived by the single remark that the facts do not present a case in which the company, upon the theory of its own neglect, would be liable, notwithstanding the want of prudence of the servant, as, by the observance of due caution .on his part, the accident might have been avoided, even conceding the neglect and knowledge of the company in the strongest light in which it can be viewed from the evidence.
Emphasis is given to the foregoing from .the fact, that, of his own accord, the engineer drove the engine at a rate of speed pro
Although this case is thus concluded, there is another portion of the evidence of the engineer, which cannot be considered otherwise than as extraordinary, and as demanding notice here in the interest of the public.
The engineer further testified, that: “ The time table now shown me is the same schedule by which I was then running, but the copy I had had no such rule upon it, as appears on the back of this, in words as follows: ‘ Eules and regulations of the Memphis & Charleston Eailroad Co. Engineers must approach stations expecting them to be wrong;’ * * I never had made known to me any such rule as also appears on said schedule in words as follows : No excuse will be received for ignorance of any published rule or regulation.’ ”
Yet, he testifies to a service with this company of ten or fifteen year’s. It would seem that the servant must have been grossly, or at least inexcusably, ignorant; or, the company must have been culpably negligent, or at least insufficient in the service of copies of rules and regulations upon its employés.
With the motion for a new trial an affidavit was filed, referring to this evidence of the engineer, and averring that it was a surprise which the company could not meet on the trial. This can be well perceived, and it is believed a case of surprise was presented entitled to favorable consideration. There was’ no evidence to show that these rules had always been in force, and that there were no cards or schedules, authorized by the company, without them. Both parties to the action and the traveling public were alike concerned in this question.
It will of course be understood, that this opinion is based on the record as it is now presented.
Judgment reversed, cause remanded, and a new trial awarded.