| Miss. | Dec 15, 1899
delivered thé opinion of the court.
While it is true, under tlie facte revealed by the appellant’s evidence, that he was not a trespasser in seeking to avail himself of the short cut over appellee’s yard in Vicksburg, rather than take the trouble to go two squares farther on a perfectly safe route, and that he was a licensee in entering said yard, it is nevertheless true that he was bound to observe the usual and ordinary care to guard against accident and injury from the engines and cars of the railroad company while being run or switched in-the business of'the company in its yard. He undertook to do the act, always unsafe and oftentimes dangerous, of passing between two cars coupled up, and constituting a part of a standing train, though at the moment of his beginning his venture no engine ivas attached to it.
His own evidence shows that he came down Klein street from the east until he reached the point where that street abruptly fell several feet into the appellee’s yards, which were constantly used, as necessity arose, in doing the switching of the company. Descending the flight of steps at the point where Klein street fell into this yard, he discovered a standing train of twenty-four or twenty-five box cars, unattached to an engine, standing on one of tlie many tracks which gridironed the yard, but with no opening between the cars for the passage of pedestrians, and only persons on foot did or could use this short cut over the tracks and through the yard. From his own evidence, and from that of all other witnesses examined on this point, the custom of the railroad was to make an opening between cars thus left, that persons passing might go through. On this particular occasion, and for the first and only time, he found his-way across the yard blocked by a solid train of about twenty-five cars. When he had descended the steps from Klein street into the yard, he says he looked and listened, but saw neither engines nor cars, except the train immediately in his way. He then walked twenty-five or thirty feet, and when in two or three feet of these standing cars he again looked and listened,
It is almost incredible that one attentively observant of his surroundings, under the circumstances of this case, did not and could not have seen, in this perfectly open and level yard, the engine and nine ears which the occurrence- demonstrates were there and near at hand. While the appellant says he looked, and listened, when within two or three feet of the cars between which he attempted to pass, and saw nothing and heard nothing, still it must be remembered that in an instant afterward, and after the appellant had only stepped two or three feet, ánd had swung himself up between the ears, and put his foot on the drawhead, the nine cars being pushed by the engine struck the standing train which he was attempting to cross over.
But wre are not left to conjecture or inference as to the presence of the engine and nine cars in the yard. Appellant’s witness, Crutchfield, testified that he was standing in the yard and near the steps when the injury to appellant occurred; that he saw the engine come out of the roundhouse, which by the diagram appears to have been quite near at hand, and saw it run up to a switch, back down and couple on to the nine box cars standing' near the roundhouse, or caboose track (for he
Admitting that appellant did not see any engine or cars, other than the twenty-five which stood across his contemplated way, yet it is manifest that the engine and nine cars were there, and near by, and though appellant did not see them, that fact is not controlling, because the final test is, could and should he have seen them under the circumstances testified to by himself and his witness? That an affirmative answer must be given we entertain no doubt, and the peremptory instruction of the court below was correctly given.
Affirmed.