Stevens v. Yazoo & Mississippi Valley Railroad, 81 Miss. 195

Stevens v. Yazoo & Mississippi Valley Railroad

81 Miss. 195 | Miss. | 1902

Calhoon, J.,

delivered the opinion of the court.

The cause went off below on a peremptory charge of the learned circuit judge to the jury to find for defendant on the testimony for plaintiff. It follows that, in our view of it, we are to be controlled by a solution of the question whether a verdict for the plaintiff on that testimony would be permitted to stand. On that the jury would have been warranted in believing the following: The union passenger railroad depot of the city of Jackson is situated just north of Capitol street, which runs east and west, and crossing the railroad. The next street south is Pearl, and the next south of that is Pascagoula, and the next south of that is South street. These streets are 320 feet apart. The main track of the Illinois Central Railroad runs straight north and south, crossing all these streets. The Yazoo & Mississippi Yalley Railroad Company habitually used this main track going south until it arrived at a point about midway between Pearl and Pascagoula streets, at which point, by a switch arrangement, its passenger trains left the main track, and went on its own separate track, running thence due south to a point about halfway between Pascagoula and South streets, when it diverged southwest on its way to Natchez. Divers railroad tracks and switch tracks, running north and south, cross Pascagoula street, and just south of Pascagoula street, and between that and South street, the ground is practically gridironed with switch tracks; and all this is in a populous and much frequented quarter of the city, and much used by pedestrains, and has been so used for 20 years to the knowledge of the railroad company. Early in the afternoon Mr. Stevens was on his way to a factory. He had come from the eastern *205part of the city, going west on Pascagoula street. When he reached the railroad crossing his route led south and a little west of south to the factory, which was the point of his destination. On reaching the main line of the Illinois Central Railroad where it crosses that street, Mr. Stevens looked up the line, and saw a passenger train moving south, which he took to be what is ordinarily known as the “Cannon Ball” train of the Illinois Central Railroad Company. When he saw it, it was just at Pearl street, 320 feet north of where he was. He walked across that main track of the Illinois Central Railroad Company, and, of course, believed himself to be, and was, absolutely out of all danger from that train if it had continued down the main line. When he got across that main line, he was immediately disturbed by the movements of switch engines and cars in the switch yards south of him, in which direction he was going, and, to avoid danger from them, he was on the alert to watch their movements. He had thought that the point of deflection from the Illinois Central main line into the Yazoo & Mississippi Yalley line was to his south at a point about midway between Pascagoula and South streets, which was a mistake. Now, while watching the switch engines in his front, he pursued his course a little west of south, fronting the switch engines, from which only there seemed to him any possible danger, and got to the eastern side, at the crossties of the railroad track of the Yazoo & Mississippi Yalley Railroad Company. If he had stopped, in the space between the two tracks he would have been perfectly safe, but, observing the instinct of men when a train is coming down a track, he got as far away from the Illinois Central main line as possible, and was, as we have said, at the eastern end of the crossties on the Yazoo & Mississippi Yalley track. He was watchful and alert, to the best of his judgment, all the time, to avoid danger. His back was towards the north — towards the depot, from which the train was coming — when the Yazoo & Mississippi Yalley train, without ringing a bell or blowing a whistle, ran *206on him, and inflicted injuries which will greatly impair, if not destroy, his usefulness through life. One sharp blow of the whistle would, no doubt, prevented any casualty. The speed of the train which struck him is put by one witness at the rate of from 10 to 15 miles an hour ; another, at 12 miles an hour ; and a fair deduction from the testimony of the plaintiff himself would put it at from 20 to 22 miles an hour ; and this, as we have said, in a very populous neighborhood, in the heart of the city, in a place' much frequented by the people. If the train which did the damage to this man had been going at the lawful rate of speed of six miles an hour, it is plain that the catastrophe would not have occurred, because, by the time the train could have gotton to him he would have been at an entirely safe place. He had the right to suppose, and did suppose, that the southbound train was not traveling . faster than the limit prescribed by law, in which case he was in no sort of danger. But if he had not supposed so, the fact remained that the speed, was at least twice that of the lawful limit. As soon as he got his bearings as to danger from the switch engines in his front to the south — and he says in a second — he would have looked back north for any danger from any train from that quarter, it being the time of day for trains to move out from the depot. While the writer dissented from the conclusion of the court in Bell v. Railroad Co., 30 South., 821, he and the whole court subscribed then, and subscribe now, to the language of Chief Justice Whitfield in that case, that: ‘ ‘So many questions are integrated usually into the solution of the question of negligence — it is so necessary to examine all the circumstances making up the situation in each case — that it must be a rare case of negligence that the court will take from a jury.” , A judge at his desk, whose duties seclude him very much, and train him to habits of careful deliberation, is not nearly so competent to determine what a man of the usual and ordinary prudence might do under given circumstances as a jury from the body of the people. Contributory negligence *207as a defense, must be quite obvious to all reasonable minds to warrant its announcement as matter of law. This is very thoroughly established by the authorities cited in the brief of counsel for appellant. Especially note 2 Shear. & R. Neg. (5th ed.), p. 830, sec. 477, bearing on situations like that disclosed in this record — of confusion by noises of many engines and numbers of tracks and trains. Under such circumstances it may be that a man of great prudence might err in judgment, though using his utmost and most wary attention. But the statute prohibiting the running of trains more than six miles an hour in cities, etc., was enacted to protect against ‘ ‘ the known imprudence of the many who need protection against themselves.” Railroad Co. v. McGowan, 62 Miss., 698; 52 Am. Rep., 205; Railway Co. v. Carter, 77 Miss., 517; 27 South., 993. This in no way impinges on the doctrine that contributory negligence may, in palpable cases, defeat recovery, and defeat it as matter of law. The question now is as to what may be taken from the province of the jury. Much stronger cases have been held to be within the exclusive province of that constitutional body. Downing v. Steamship Co. (La.), 29 South., 207; Lampkin v. McCormick (La.), 29 South., 953 (83 Am. St. Rep., 245); Law v. Railway Co. (Tex. Civ. App.), 67 S. W., 1025. The case of Railroad Co. v. Crockett, 78 Miss., 412 (29 South., 162), in no degree militates against this view. We hold this now: That, regardless of whether this plaintiff was a trespasser or a licensee, or properly where he was, it was recklessness tantamount to wilfulness for a railroad company, running its train in 'flagrant violation of law as to speed and as to signals, to run, in open daytime, on a man with back to the engineer, in the heart of a city, and in a much frequented part of it. Railway Co. v. Carter, 77 Miss., 511 (27 South., 93); Railroad Co. v. Van Steinburg, 17 Mich., 117; Morgan v. Railroad Co. (Mo. Supp.), 60 S. W., 195; Railway Co. v. Lee, 92 Ala., 271 (9 South., 230); Railroad Co. v. Brown, 77 Miss., 342 (28 South., *208949). In such situations there should be a careful lookout and close observance of all the precautions.

Reversed <md remanded.