Opinion
No. 34621.
May 26, 1941. Suggestion of Error Overruled June 14, 1941.
RAILROADS.
The duty of keeping a lookout is as much on the fireman when he is not busy with his fires as upon the engineer.
APPEAL from the circuit court of Carroll county, HON. JOHN F. ALLEN, Judge.
Richard Denman, of Greenwood, and Lucius E. Burch, Jr., Clinton H. McKay and Frank F. Roberson, all of Memphis, Tenn., for appellant.
Engineer was under no duty to take any precautions until it became reasonably apparent that decedent would not stop before going over crossing.
M. O.R.R. Co. v. Johnson, 157 Miss. 266, 126 So. 827; M. O.R.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; N.O. N.E.R.R. Co. v. Keller, 162 Miss. 392, 138 So. 358; A. V.R.R. Co. v. McCoy, 105 Miss. 737, 63 So. 221; N.O. N.E.R. Co. et al. v. Wheat, 172 Miss. 524, 160 So. 607.
Decision requiring engineer to check speed of train upon discovery of person approaching crossing would be violative of Constitution of United States.
M. O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Seaboard Air Line R.R. Co. v. Blackwell, 244 U.S. 310, 61 L.Ed. 1160, L.R.A. 1917F, 1184; Miss. R.R. Comm. v. I.C.R. Co., 203 U.S. 335, 51 L.Ed. 209; Erie R.R. Co. v. Tompkins, 304 U.S. 64, 92, 82 L.Ed. 1188; Swift v. Tyson, 16 Pet. 1, 18, 10 L.Ed. 865.
Colson Guy, of Greenwood, for appellees.
The duty resting on Mr. Gilbert, the engineer, must be determined by all the facts and circumstances as disclosed by the evidence, in order to ascertain if, by the exercise of reasonable care, Mr. Gilbert foresaw or anticipated or might have foreseen or anticipated that some injury might result to Mr. Lum from Mr. Gilbert's act or omission.
20 R.C.L., page 138, par. 114, page 141, par. 116; Fuller v. I.C.R.R. Co., 100 Miss. 705, 56 So. 783; Staggs v. R.R., 77 Miss. 507, 27 So. 597; Harrison v. R.R., 93 Miss. 40, 46 So. 408; I.C.R. Co. v. Tolson, 139 U.S. 551, 11 Sup. Ct. 653, 35 L.Ed. 270; C.I. Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; Y. M.V.R.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Russell v. Atchison Ry. Co., 70 Mo. App. 88; Hodges v. St. L., K.C. N. Ry. Co., 71 Mo. 50; Davis v. Louisville Ry. Co. (Ky.), 97 S.W. 1122; Jarrel v. N.O. N.E.R. Co., 109 Miss. 50, 67 So. 659; Hartman v. Chicago G.W.R. Co., 132 Iowa, 582, 110 N.W. 10; Corder's Adm'r v. N.O. T.P.R.R. Co., 155 Ky. 536, 159 S.W. 1144; Nichols v. Chicago R. Co., 125 Iowa, 236, 100 N.W. 1115; I.C. Ry. Co. v. Dillon, 111 Miss. 523, 71 So. 809; Weiss v. Great Northern R. Co., 119 Minn. 355, 138 N.W. 433; Southern Ry. Co. v. Lawler, 11 Ala. App. 241, 65 So. 859; Valin v. Milwaukee N.R. Co., 82 Wis. 1, 51 N.W. 1084, 33 Am. St. Rep. 17; G. S.I.R.R. Co. v. Simmons, 117 So. 345, 150 Miss. 506; Russo v. Texas Pac. R.R. Co., 181 So. 485.
Argued orally by Richard Denman and Lucius E. Burch, Jr., for appellant, and by T.A. Guy, for appellee.
There is no substantial basis for a differentiation between this case and that of New Orleans N.E.R. Co. v. Keller, 162 Miss. 392, 138 So. 358. It is true that in that case it was the fireman who saw the deceased as he turned to go towards the track at the private crossing, while here it was the engineer himself; but the duty of a lookout is as much on the fireman, when not busy with his fires, as upon the engineer, Mobile O.R. Co. v. Johnson, 157 Miss. 266, 275, 126 So. 827 — hence the cases cannot be differentiated on that account.
The Keller case controls, and under it appellant was entitled to the peremptory instruction requested.
Reversed, and judgment here for appellant.