Opinion
No. 30986.
January 15, 1934. Suggestion of Error Overruled January 29, 1934.
1. RAILROADS.
As respects peremptory instruction, evidence in death action held to show, as matter of law, that deceased was killed by defendant's locomotive between street crossings at point where he was trespasser.
2. RAILROADS.
Railroad company's employees on locomotive owed duty to exercise only reasonable care to avoid striking trespasser after discovering him on track.
3. RAILROADS.
Undisputed evidence that defendant railroad company's employees on locomotive did not see trespasser on track in time to avoid striking him by exercising reasonable care, required peremptory instruction for defendant in action for his death.
APPEAL from Circuit Court of Harrison County.
Bidwell Adam, of Gulfport, for appellants.
It is well settled in this state that it is error to give peremptory instruction on a point on which the testimony is conflicting.
Bell v. Southern R. Co., 94 Miss. 440, 49 So. 120; Skipworth v. Mobile O.R. Co., 95 Miss. 50, 48 So. 964; Byers v. McDonald, 99 Miss. 42, 54 So. 664; Romando v. Vicksburg R. Co., 39 So. 781; Bonner v. New Orleans R. Co., 40 So. 65; Elledge v. Gray, 41 So. 2; Bryant v. Enochs Lbr. Co., 94 Miss. 454, 49 So. 113; Bolling v. Red Snapper Sauce Co., 97 Miss. 787, 53 So. 394; Dodge v. Cutler, 101 Miss. 844, 58 So. 208; Hardy v. Masonic B. Assn., 103 Miss. 108, 60 So. 48; Walker v. Dantzler Lbr. Co., 103 Miss. 826, 60 So. 1013; Mobile O. Ry. Co. v. Carpenter, 104 Miss. 706, 61 So. 693; Offutt v. Barrett, 106 Miss. 31, 63 So. 333; Waldrop v. Crittenden Co., 107 Miss. 595, 65 So. 644; National Life Ins. Co. v. DeVance, 110 Miss. 196, 70 So. 83; Jones v. Knotts, 110 Miss. 590, 70 So. 701; Mobile Ohio R.R. v. Johnson, 141 So. 581, 582; Young v. Columbus G. Ry., 147 So. 432.
Everything must be considered as proved which the evidence establishes either directly or by reasonable inference against party who asks peremptory instructions.
Dean v. Brannon, 139 Miss. 312, 104 So. 183; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 165, 106 So. 81; New Orleans R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New Orleans R. Co. v. Martin, 140 Miss. 410, 105 So. 864; St. Louis R. Co. v. Nixon Phillips, 141 Miss. 677, 105 So. 478; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; Gulf R. Co. v. Hales, 140 Miss. 829, 105 So. 458; Williams v. Gardner, 128 So. 111, 157 Miss. 252; Gulfport Miss. Coast Traction Co. v. Raymond, 128 So. 327, 158 Miss. 439; Sanders v. Leake Goodlett, 130 So. 489, 158 Miss. 424; Yazoo M.V.R. Co. v. Beasley, 130 So. 499, 158 Miss. 370; Wellford Withers v. Arnold, 140 So. 220, 162 Miss. 786.
The testimony of the engineer Lavine is sufficient under Section 6125, Code of 1930, to have permitted this case to have gone to the jury on the question of negligence, because engineer Lavine who was in charge and operating train 2nd No. 73 on the morning of April the 22nd, testified that he could have missed blowing for the Hiern Avenue, Church Street or Clark Street crossing.
Nixon v. I.C.R.R. Co., 60 So. 567; Section 1580, Mississippi Code of 1930; Mobile, J. K.C.R.R. Co. v. Turnipseed, 46 So. 360, 219 U.S. 35, 31 S.Ct. 136, 138, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226.
It is our contention that in view of Section 1580 of the Code of 1930 and of the Turnipseed case, supra, that there was more than sufficient evidence in this case for the same to be submitted to the jury on the theory and question of negligence as set forth in the celebrated Turnipseed case handed down by the U.S. Supreme Court affirming the decision of this court.
Columbus G. Ry. v. Dunlap, 145 So. 646. Smith Johnston, of Mobile, Ala., for appellee.
It is elemental that in order to make a case of liability for a tort it must be shown that the defendant, or its servants or agents, were guilty of negligence, and that the negligence constituted the proximate cause. Negligence that is not shown to be the proximate cause does not constitute a liability on the part of the defendant.
Louisville Nashville Railroad Co. v. Daniels, 135 Miss. 33, 99 So. 434; Louisville Nashville Railroad Co. v. Jones, 134 Miss. 53, 98 So. 230; Howell v. Illinois Central Railroad Co., 75 Miss. 242, 21 So. 746; Ozen v. Sperier, 117 So. 117; Garrett v. Louisville Nashville Railroad Co., 196 Ala. 52, 71 So. 685; Columbus Georgia Ry. Co. v. Cobbs, 126 So. 402; Bufkin v. Louisville Nashville Railroad Co., 137 So. 517; Billingsly v. Illinois Central Railroad Co., 56 So. 790, 100 Miss. 612; G.M. N.R.R. v. Hardy, 117 So. 536, 151 Miss. 131; Y. M.V.R. Co. v. Cox, 97 So. 7, 132 Miss. 564.
A railroad company does not owe any duty to keep a lookout for persons who are trespassers, but the only duty owing to a trespasser is not to wantonly or wilfully injure him after discovering his position of peril.
N.O.M. C.R. Co. v. Harrison, 61 So. 655, 105 Miss. 18; I.C.R.R. Co. v. Mann, 102 So. 853, 137 Miss. 819; A.G.S. Ry. v. Daniell, 108 Miss. 358, 66 So. 730; Fuller v. I.C.R.R. Co., 100 Miss. 705, 56 So. 783; I.C.R.R. Co. v. Ash, 128 Miss. 410, 91 So. 31; L.N.O. T.R. Co. v. Williams, 12 So. 957, 69 Miss. 631; Hancock v. Illinois Central R.R. Co., 131 So. 83; Mobile Ohio Railroad Co. v. Bryant, 132 So. 539.
If the deceased was killed on a crossing there was no liability.
Columbus G. Ry. Co. v. Dunlap, 145 So. 646.
If he was trying to hop off or on the train and was killed in the act, whether at a crossing or any other place, the defendant could not be held responsible for his unfortunate death.
When the defendant showed positively that he was not struck by the front of the engine on any of the crossings, or was not on the crossings when the engine passed over, there was no possible basis upon which the jury could find the defendant liable for this unfortunate accident. To permit a jury to do so would be in violation of the Federal Constitution, in that it would deprive the defendant of its property without due process of law.
Western A.R.R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445; Atlantic Coast Line Ry. Co. v. Ford, 53 S.Ct. 249; N.O. G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Adams-Newell Lbr. Co. v. Jones, 162 Miss. 517, 139 So. 315; A.G.S. Ry. v. Hunnicutt, 53 So. 617, 98 Miss. 272; G.M. N.R.R. v. Jones, 102 So. 385, 137 Miss. 631; C. G. Ry. Co. v. Cobbs, 126 So. 402; Ozen v. Sperier, 117 So. 117, 150 Miss. 458.
Argued orally by Bidwell Adam, for appellant, and by Harry H. Smith, for appellee.
This is a suit by the father, mother, sisters, and brothers of Octave Murray, deceased, to recover damages from the appellee for the death of Murray, who is alleged to have been struck and killed by one of the appellee's trains. At the close of the evidence the court peremptorily instructed the jury to find for the railroad company, and from the verdict and judgment entered in pursuance thereof this appeal was prosecuted.
The body of the deceased was found strewn along the railroad track between Hiern avenue and Church street in the city of Pass Christian. Leovy avenue, which is between Hiern avenue and Church street, abuts on the railroad right of way but does not cross the railroad tracks, and the main part of the mangled body was found near the point where Leovy avenue would have crossed the railroad tracks if extended; nearby his cap and shoes were found, showing no signs of damage by the train. Parts of the body, particles of flesh and clothing and some blood were found on and along the track from near Leovy avenue to and just across Church street.
The court below held, and we think correctly, that the evidence demonstrates beyond question that Murray was killed by one of appellee's westbound locomotives, between Hiern avenue and Church street, at a point where he was necessarily a trespasser. The engineer and fireman of each of appellee's locomotives which passed the place at which the body of Murray was found, between the time he was last seen alive and when found, testified that a strict lookout was kept at all crossings in the city of Pass Christian; that their attention might have been momentarily directed to the discharge of necessary duties on the locomotives at the point where the body was found, and that they did not see him and did not know that he had been struck until informed thereof the next morning.
If, as we have already said, the evidence demonstrates that the deceased was on the track at a point where he was a trespasser and that he was killed by one of appellee's locomotives, this, in so far as his movements were concerned, was all that was necessary to be shown in order to determine what duty the appellee's employees owed him, and that duty was to exercise reasonable care to prevent striking him after discovering he was on the track. The evidence is undisputed that the employees on the locomotive which struck him did not see him on the track and were not aware of his peril in time to avoid striking him by the exercise of reasonable care, and the court below committed no error in granting the peremptory instruction. The facts in this case are very similar to those involved in the case of Mobile Ohio R. Co. v. Robinson, 132 Miss. 841, 96 So. 749, which case is controlling here.
Affirmed.