100 F. 731 | 5th Cir. | 1900
after stating the case, delivered the opinion of the court.
At the time the injury was inflicted which caused Kelson’s death he was an employé of the defendant company, and was engaged in making and carrying mortar to build a depot. The injury was caused by other employés in charge of a locomotive and train on defendant’s railroad. It is not necessary to consider the common law relating to fellow servants, because, so far as that question relates to this case, it is controlled by the Mississippi constitution and statute. Section 198 of the constitution of Mississippi of 1890 provides that:
“Every employs of any railroad corporation shall have the same right and remedies for any injury suffered hy him from the act or omission: of said corporation, or its ■ employés, as are allowed by law to other persons not em-ployés, * * * where the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, * * * or of one engaged about a different piece of work.”
This provision of the constitution is repeated in the statute. Code Miss. 1892, § 3559. The employés having charge of the train of cars were engaged in another department of labor, and on a different piece of work, from that in which Kelson was engaged.
The evidence tended to show that defendant’s locomotive attached to the train of cars ran over and killed the plaintiff’s intestate at 8:30 a. m., on September 12,1893. The accident occurred at Pachuta, Miss., which was an incorporated town of 150 to 200 inhabitants. The defendant was erecting a depot in that town, and “a lot of hands” were at work on it at the time of the injury. The plaintiff’s intestate was engaged in making mortar in a mortar box situated between the railroad tracks, and in carrying the mortar across the main track to the depot. Lumber was so piled between the main track and the depot that he could not go straight across to the depot, but would be required to go northward 10 or 15 feet, and then eastward, to reach it. There was a curve in the railroad 330 feet from the mortar box, and a public crossing 210 feet from the mortar box. Several cars were so standing on the side track west of the main track as to obscure the view of the main track northward at a distance of 330 feet from the mortar box and from the track near it. An engine was on the west track, letting off steam, and making a thumping noise. The train'was two hours later than the schedule time. Kelson started from the mortar box with a bucket of mortar to carry it to the depot for use in the building. When he was crossing the track, he first saw the train. It was running at the rate of 40 miles an hour. The statute prohibited under penalty the running of trains through an incorporated town faster than 6 miles an hour. Id. § 3546. Ko bell was rung, or other signal given. Kelson was within 60 feet of the train when he first saw it. The obstructions on the side track were
• “Tlie eases 5n this court relied upon by the plaintiffs are all readily distinguishable, either by reason or the proximity of obstructions interfering with the view of approaching trains, confusion caused by trains approaching simultaneously from opposite directions, or other peculiar circumstances tending to mislead the injured party as to the existence of danger in crossing the track.” Railroad Co. v. Freeman, 174 U. S. 379, 384, 19 Sup. Ct. 763, 765, 43 L. Ed. 1011, 1017.
This case indicates distinctly that, where there are obstructions interfering with the view of approaching trains, or other peculiar circumstances tending to mislead the injured party, the question of contributory negligence would at least be one for the jury. In the present case the obstructions on the railroad were such that the train could not be seen by Nelson till it was within 330 feet of him. If it was going at the rate of 40 miles an hour, it would go 330 feet in less than 6 seconds. Nelson did not see it till it was within 60 feet of him. That distance would be run by the train in about one second. Nelson was in the lawful performance of the work he was employed to do. The defendant was chargeable with notice of the conditions surrounding him. The conclusion does not follow from these facts, as matter of law, that Nelson was guilty of .contributory negligence. The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusions from them. A case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. We do not discuss the evidence further, for we would not intimate what the verdict on the question of contributory negligence should be. We are of opinion that the evidence in the record makes it a question that should be submitted to the
