Southern Railway Co. v. Pittman

52 So. 207 | Miss. | 1910

Mayks, O. J.,

delivered the opinion of the court.

There can be no disputing the fact that the old negro, seventy-three years of age, was guilty of negligence in venturing on a railroad trestle two hundred and forty-eight feet long and from twelve to twenty feet high. Had accident resulted to him solely because he went upon the trestle, undoubtedly he could not have recovered therefor. But we do not conceive that to be the question' in this case. Even trespassers on railroad tracks cannot be recklessly or wantonly injured; but, when seen in a position of danger, reasonable care must be exercised by the railroad to prevent the injury. Without attempting a rehearsal of all the facts in this case, we will review a few points indisputably shown by the testimony, in order that we may determine whether or not it was a question for the jury to determine whether such reasonable care was exercised by the railroad company.

The engineer running the train that killed Jesse Pittman had been on that road for nineteen or twenty years. He knew of this trestle, which was two hundred and forty-eight feet, long and from twelve to twenty, feet high. He saw the deceased on this trestle as he turned the curve, some three hundred and fifteen yards- away. The train was running at thirty-five or forty miles an hour. To use the exact language of the engineer, he says: “As I rounded the curve (shown by the testimony to be about three hundred and fifteen yards distant) I realized that he was on the trestle. I blew my whistle to let him know I was coming. He had his back to me, and when I blew my whistle he mended his gait. He did not run, but kind of hopped along; kind of trotted. He did not exactly run, and I thought he was trying to make the end of the trestle, and in my judgment I did not think he could make it, and I then applied my emergency brakes.” It fully appears in other testimony that the emergency brakes- were not applied until the engine had reached the approach to the trestle, and less than two- hundred and forty-eight feet from where deceased was killed; it being impossible to come to a stop in less than three hundred feet. In short, although the engineer first saw deceased three hundred and fifteen yards from where he was killed, on a trestle from twelve to twenty feet high, and running for no purpose, apparently or rationally, but to seek a place of safety, no effort was made to stop the train until it was manifest that the old man could not reach the end and in this way gain a place of safety; it then being too late to stop before striking him.

The question in this case is, In view of all the facts in this record and known to the engineer, did he exercise reasonable care .to avert the accident? That the position of the party billed was a perilous one all mankind will agree. That the engineer knew of this position is testified to by him. Then the question is, Did he exercise reasonable care? We think this question should have gone to the jury, and, since their finding is against the idea that reasonable care was exercised, we do not feel warranted in disturbing their finding. The case of Christian v. Railroad Co., 71 Miss. 237, 15 South. 71, is directly in point and controls this case. In cases of this character the court says: “The true rule is that the servants of the company are not bound to keep a lookout for trespassers; but if they see one, and appreciate his danger, and that he cannot, by the exercise of reasonable effort, extricate himself, then they, in turn, must exercise reasonable care to prevent injury to him; and what is such reasonable care is a question of fact, determinable by the circumstances. Jamison v. Railroad Co., 63 Miss. 33; Railroad Co. v. Cooper, 68 Miss. 368 [8 South. 747]; Railroad Co. v. Williams, 69 Miss. 631 [12 South. 957]; Railroad Co. v. Watly, 69 Miss. 145 [13 South. 825].”

Affirmed.