Nixon v. Illinois Central Railroad

60 So. 566 | Miss. | 1912

Cook, J.,

delivered the opinion of the court.

Sam Nixon was found dead on the railroad right of way about 5:30 o’clock in the morning. He was undoubtedly killed by the running trains of the defendant company. Suit was brought by the next of kin to the deceased, and upon the conclusion of the evidence at the trial the court excluded the evidence, and peremptorily instructed the jury to return a verdict for the defendant, and plaintiffs appeal to this court.

The defendant assumed the burden of proving just how the*killing occurred,, and selected train No. 133 as the one causing it, which train left Memphis, Tenn., at 2:15 o’clock a. m. This train was running through the public square and across the public crossings of the town of Batesville at the rate of between forty-five and sixty miles per hour, and, according to the testimony of the train crew, the station signal was sounded one mile north of town, and the signals were given for the crossings within the public square, The locomotive engineer, of the train testified that as he got within three hundred feet of the south crossing he saw something near the eastern rail of the road, which he thought was a hog or dog, and knows he struck it because it did not have time to get out of the way, and that it was impossible for him to do anything to prevent the accident. The engineer in testifying did gome posturing to indicate the thing as it appeared to him. The next day about noon he learned that a man had been killed on the railroad at Batesville the night before. This, in substance, is what the engineer said were the facts. It is true that he, in speaking of the incident, assumed that the object which he thought at the time was a hog or dog was, in fact, a man;, but, if we confine his testimony to what he knew and discard his inferences, we think his testimony is fairly stated.

No doubt the witness was entirely honest in his conclusions, but it is clear his conclusions were not reached from what he saw at Batesville, but by a process of reasoning in the light of after-ascertained facts. Besides this, there were other circumstances tending to support the theory of this witness. When the train reached the passing station about fifteen or twenty miles south of Bates-ville, it was discovered that an iron step suspended from the crossbeam on the pilot of the locomotive, and extending down to within six or eight inches of the rail, had been bent backward at an angle of forty-five degrees, showing that it had come in contact with something, or something had come in contact with it — when, how, or where does not appear. It is the theory of appellee that this step struck deceased as he was sitting, or crouching, on the ends of the crossties, and the force of the impact caused the bending of the rod supporting it.

The crews of other trains which passed Batesville after midnight of the day of the killing were also introduced for the purpose .of excluding the idea that some other train may have struck deceased, but it is the contention here that train No. 133 is the train which caused the death. The briefs of counsel on both sides are exceptionally clear, frank, and helpful to the court. »Having settled upon the train chargeable with this deplorable event, it is insisted that the train was properly equipped and carefully operated, and therefore it is conclusively demonstrated that appellee’s servants were not guilty of negligence.

It is the contention of defendant that the record shows deceased had been drinking heavily, and while in a stupor from the intemperate use of alcoholic stimulants he sat down on the end of the crossties, and was probably asleep when he was struck by the train. In regard to this contention, the evidence discloses that the deceased spent the day before at a political gathering at Courtland, about five or six miles south of Batesville, and there is evidence to support the theory that he had imbibed rather freely during the day and evening. The evidence is in conflict upon this subject, and we are unable to say that the evidence in support of defendant’s contention is of that character which would authorize the court to declare the-disputed fact established beyond reasonable controversy. There are some proven facts which strongly tend to discredit this theory of defendant.

The plaintiff’s theory is that the evidence tends to show that another train killed deceased, and, without referring to the circumstances relied on to establish this theory, it is only necessary to say that there is reason in the contention. If the train which defendant says struck deceased was not the train, the killing is unexplained by the evidence. That train No. 133 was the cause of the tragedy does not seem to be an established fact, as we read the record. In other words, we think the jury could, without doing violence to the record, have come to the conclusion that the engineer’s testimony was unconsciously colored by what he had learned after the event, and, by boiling it down to the actually proven facts, it amounted to nothing more than that the engineer saw some object on the edge of the rail which he thought was a hog or dog, and from the fact that a man was killed by some train passing through Batesville that night, when testifying, he put the two things together, and was satisfied that he was mistaken about the object seen by him being a hog or dog, but, in fact, it was Sam Nixon, the deceased. If the jury could have reasonably reached this conclusion, it follows that the peremptory instruction should not have been given by the trial court.

Train No. 133 was running at the rate of forty-five to sixty miles per hour, and the engineer said, when the object on the track came-within his vision, it was too late, for him to make any attempt to stop or check the speed of the train, and that he did nothing. In Railroad Co. v. Moore, 58 South. 473, 39 L. R. A. (N. S.) 978, the court said: “The law is well settled that it is negligence in a railroad company to run its train in the night-time at such a speed that it is impossible, by the use of ordinary means and appliances, to stop the train within the distance in which the obstructions upon the track can be seen by the aid of the headlight of the engine, and that, if anything in surrounding conditions and circumstances suggests an increase of care in the operation of a rialroad train to avoid peril and damage, the duty to increase such care proportionately increases. Such is in accordance with the great weight of authority and with the better reason.” The Moore case, supra, is almost on fours with this case, and is the last expression of this court upon the principles involved in the present case.

When it is shown that the injury, is caused by the running trains, our statute shifts the burden of its exculpation to the shoulders of the railroad company. It is incumbent upon the railroad company not only to prove just how the injury occurred, but, to entitle it to a peremptory instruction, it must also appear beyond reasonable disputation that its servants were free from negligence in the operation of the train.

The evidence in the present case does not comply with the rule, and the case must be reversed and remanded.

Reversed and remanded.