New Orleans & N. E. R. v. Mobly

| Miss. | Oct 15, 1913

Reed, J.,

delivered the opinion of the court.

Will Mobly, a minor, by next friend, sued the New Orleans & Northeastern Railroad Company for damages from personal injury, resulting in the loss of a leg, inflicted upon him by a running train of the railroad company. A verdict was returned in bis favor for three thousand dollars.

One of the assignments of error in this appeal is the refusal hy the trial court to grant a peremptory instruction in favor of the appellant. We are therefore brought to consider whether the facts in this case show that appellant has been guilty of negligence so as to render it liable for damages by reason of the injuries suffered by appellee.

Will Mobly, at the time when he was injured, September 2, 1907, was employed by the railroad company as a laborer on one of its work trains. His duties were to assist in the handling of the dirt carried on the train and to look after hot boxes. This train was operating south of Picayune, on the line of the railroad company, and it stopped, or was “tied up,” at night at Picayune. Mobly had been in this employment for about two months before he was injured.

On the night of the accident this work train reached Picayune about nine o’clock. It was accustomed to stand for the night on a side track. It seems that when the work train reached Picayune a passenger train was about due, and it had to wait until that train passed before it could be switched and placed wkeré it was to remain for the night. Attached to this work train was a coach used as a caboose. Mobly and several others rode in this coach in coming to Picayune. He and others, among the laborers, were in the habit of sleeping in this coach. It does not appear that the railroad company provided bunks or sleeping places for the laborers in the coach, but no objection was made to their using it as a place to sleep at night; and in fact this was a permissive use. When the work train reached Picayune, and while it was waiting for the passenger train to pass, Mobly left the coach in which he had been riding and went to a boarding house about a block away to obtain something to eat. He found the house closed and returned to the coach for the purpose of sleeping there for the night. According to his statement, he attempted to board the coach at the end next to the engine, and, as he caught the handhold for the purpose, of getting on the steps, the train-was suddenly moved with a jerk, so that he was thrown.under the wheels of the coach, dragged for a distance,- and sustained such injury to his leg as to render amputation thereof necessary. He testified that he heard no--signals given for the moving of the train, and that he did :not see the engineer or conductor, or any of the train-crew,, on the side where he was endeavoring to hoard the coach, and that none of these trainmen knew that he was there trying to get on the train.

The passenger train which was due passed while Mobly was out of the coach. He says that he did not know that it had passed. After the passenger- train had gone by, it was necessary for the work train .to be moved about in order to locate it on the track where it was to “tie up” for the night. It is in testimony that the -bell was ringing before the engine was started, and that the engineer moved in answer to the brakeman’s signal..'. Mobly only says that he did not hear the bell. -i

There was a cinder pile on the side of-the track where Mobly attempted to board the car. It was where the engines were cleaned and had been there for some years. The trainmen were accustomed to use the other side of the track in handling cars. When Mobly was found after he. was injured he was on this cinder pile. ■ There is no testimony showing that there was any defect'in-the train. The steps and handholds on the coach were-shown to be in safe condition. '

All that occurred at the time Mobly was injured is in evidence. He claims negligence by the railroad company in suddenly jerking the train.

Mobly’s day’s work was done when the train reached Picayune. He testified that he did not have any more work to do on the train that night. It was no part of his duty to be on or about the train after it arrived at Picayune. He stated that he could leave the coach and return to it whenever he desired. When he left the car he knew that the .train had not been finally located for the night, and therefore that it was to be further moved. His use of the coach after it reached Picayune, his going out of it, returning to it, and sleeping in it were for his own convenience and pursuant to his own, personal choice. When he was injured he was not in the performance of any duty for appellant. Because he was an em: ployee, appellant allowed him to occupy the coach at night. He was familiar with the surroundings and knew what was being done in order to locate the train for the night. He certainly knew that the train had to be moved. Knowing all of this, he took upon himself some risk in voluntarily leaving the car and returning thereto. Surely it was not the duty of the appellant company to keep informed as to all of his movements and watch over him to see that he was not injured in leaving and returning to the coach.

We do not say that appellee was a mere licensee; but, under all of the circumstances .and facts of the case, we think that appellant only owed him the duty of ordinary care. This duty we believe was fulfilled.

Appellant’s counsel, in their brief, contend that, from appellee’s own testimony, appellant was entitled to a peremptory instruction, because such testimony shows that the servants of the railroad company were not guilty of any negligence towards the appellee which could be the proximate cause of his injury. They are right in this contention.

Eeversed, and judgment here for appellant.

Reversed.