New Orleans & N. E. R. v. McCraney
96 So. 683
Miss.
1923
Check Treatment
Smith, C. J.,

delivered the opinion of the court.

This is an action for damages brought by the children of Travis McCraney to recover damages from the appellant for the death of McCraney, who is alleged to have been negligently struck and killed by one of the appellant’s trains. This is the second appearance of the case in this court (128 Miss. 248, 90 So. 881); the former appeal involving only the question of whether or not these appellees are barred because of a settlement made by their mother with the appellant. On the return of the case to the court below the question of the appellees’ right to maintain the suit was tried in accordance with our former opinion, as was also the question of the appellant’s negligence, and there was a verdict and judgment for the appellees. The assignment of error on which our decision must turn is that the court beloAV erred in not directing a verdict for the appellant.

On the night of the 29th of March, 1912, the engineer of one of the .appellant’s trains that was approaching the town of Heidelberg discovered a man lying by the side of the track. This discovery was made just before the engine passed the place where the man was lying. The train was stopped, and he was picked up and carried to the station. When found he was dead, and appeared to *336have been dead for some hours. He was lying face down, with his head between the cross-ties and. his feet extending back toward the edge of the embankment; his left hand was under his body, and his right was extended toward and touching the rail, the two fingers of which had been mashed off, one finger being on the inside of the rail. His clothing was not disarranged and there were no indications' of his body having been dragged or moved from where it first fell. He had in one of his pockets a glass bottle which had not been broken. The witnesses who found the body and moved it to the railroad station testified that the back of McCraney’s head had been crushed, that being the only wound on his body; that, the only blood near him was on the cross-tie on or near which his head lay. One or two witnesses for the appellees, who examined the body after it had been removed to the station and was being prepared for burial testified that, in addition to the wound in his head, he had a small gash above one of his elbows, a bruise on his right shoulder blade, and another on his chin. McCraney was subject to fainting spells during which he would remain unconscious for about a quarter of an hour.- He was addicted to the use of intoxicating liquor, and was last seen alive about 6 o’clock p. m. on the day of his death in company with a negro who disappeared thereafter and has not been seen since.. A number of cross-ties had been unloaded along the track at the place where McCraney’s body was found, one of which was lying near where he was killed and across the path of a person walking along the side of the track. The engineers of all of the appellant’s locomotives, except one, which passed the place where McCraney’s body was found between the time he was last seen and the discovery of his body, testified that they were on the lookout when passing that place, and did not see any one on the track. The engineer who did not testify was dead, but the fireman of his engine testified he was on the lookout at the time the train passed and did not see any one. McCraney lived above two miles from Heidelberg, and was *337accustomed to walk on the railroad track in going to Heidelberg from his home and in returning thereto. The place where his body was found was between Heidelberg and his home, and at a place at which a person on the track would be a trespasser.

One question presented by the appellant’s request for a directed verdict is whether or not the evidence discloses a prima-faeie case under section 1985, Code of 1906 (Hemingway’s Code, section 1645).

In order for a prima-faeie case to be made under this statute it must appear from the evidence — the jury must be warranted in believing therefrom- — that the injury complained of was inflicted by the running of the defendant railroad company’s “engines, locomotives, or cars,” and on this evidence a verdict that McCraney’s injury was inflicted by the running of one of appellant’s “engines, locomotives, or cars” could not be permitted to stand.

Leaving out of view the testimony of the appellant’s engineers hnd fireman, and viewing the remainder thereof most strongly for the appellees, it probably points with equal force to the death of McCraney from a fall or other agency other than an “engine, locomotive or car” of the appellant. At most it can only be said to present a doubt relative thereto for solution by the jury. But, when the testimony, of the engineers and fireman, which is unimpeached and not in conflict with any other, is considered, any probability of McCraney’s having been injured by one of the appellant’s “engines, locomotives, or cars” is removed. The cases of Harrison v. Railroad, 93 Miss. 40, 46 So. 408, and Railroad v. Harrison, 105 Miss. 18, 61 So. 655, are not in conflict herewith. In those cases the infliction of the injury by the running of an engine was not in dispute, the issue being whether the injured person was seen by the engineer in time to avoid the injury.

The appellant’s request for a directed verdict should have been granted.

Eeversed, and judgment here for the appellant.

Reversed, and judgment here.