Opinion
No. 30564.
April 10, 1933.
1. RAILROADS.
Whether operators of locomotive failed to give warning signals after they became aware of danger of pedestrian killed on tracks held, under evidence, for jury (Code 1930, section 510).
2. RAILROADS.
If engineer, after becoming aware of presence of trespasser on tracks, does nothing to warn him by sounding whistle and by taking such other reasonable action as would save trespasser from death or serious injury, railroad is liable as for wanton or willful injury.
3. DEATH.
If trespasser's death on railroad tracks resulted from engineer's failure to give warning signals after becoming aware of trespasser's danger, trespasser's administrator was entitled at least to nominal damages, and to have submitted to jury question of punitive damages, even if no actual damages were proved (Code 1930, section 510).
4. APPEAL AND ERROR. Variance between declaration alleging railroad's failure to give statutory crossing signals and proof of failure to give common-law warning to trespasser on tracks after notice of danger held not to require reversal ( Code 1930, sections 510, 568, 615).
Though administrator's amended declaration based cause of action solely on allegation that railroad violated Code 1930, section 6125, requiring warnings on approaching public crossing, notices filed by railway company under plea of general issue showed that railroad company was aware that case was actually to proceed on common-law liability for failure to give warning to trespasser on its tracks after railroad had become aware of the danger, and entire course of trial showed that railway was in no way surprised or misled by the amended declaration, and no demurrer was interposed to amended declaration, and no objection was made to testimony on ground of variance.
APPEAL from circuit court of Clay county. HON. J.I. STURDIVANT, J.
Loving Critz, of West Point, for appellant.
The question as to whether the defendant was negligent under these stated facts is not a question for the court, but a question for the jury, and the court erred in giving a peremptory instruction for the defendant under this statement of facts.
Testimony that a fact did not occur given by a witness so situated that in the ordinary course of events he would have heard or seen the fact had it occurred, is sufficient to warrant a jury in finding that the fact did not occur.
Yazoo M.V.R.R. Co. v. Beasley et al., 130 So. 499; Columbus Greenville Railroad Co. v. Lee, 115 So. 782; G. S.I.R.R. Co. v. Carlson, 137 Miss. 613, 102 So. 168; Grantham v. G. S.I.R.R. Co., 138 Miss. 360, 103 So. 131; G.M. N.R.R. Co. v. Hudson, 142 Miss. 542, 107 So. 369.
If the peremptory instruction was given on the ground of the lack of proof of damages, this was manifestly error.
Yazoo M.V.R.R. Co. v. Barringer, 103 So. 86.
The amended declaration is not predicated alone, if predicated at all, upon the failure of the servants of the appellee to give the statutory public highway crossing signals. The amended declaration complains of the fact that the appellee failed to warn Perry Young of the approach of the train by the giving of any signals without regard to the statutory signals required by the public crossing statute.
The counter notice filed by appellants to the plea and notice under the general issue of the appellee is to be considered, in the consideration of this question, in connection with the amended declaration.
The amended declaration was not demurred to, and there was no attack on the counter notice by motion to strike, or otherwise.
A simple allegation in a declaration that the decedent was killed by the operation or running of a train operated by the defendant states a sufficient cause of action by reason of the prima facie statute, and if the declaration stated no more than this, the defendant was duty bound to exonerate itself from any negligence.
Hudson v. Miss. Central R. Co., 95 Miss. 41, 48 So. 285; Clark v. G.M. N.R. Co., 97 So. 185.
When persons in charge of a train discover the perilous position of one on the track thereof, a trespasser, it is their duty to use reasonable care to prevent the injury and the failure to do so is reckless or wanton negligence. Warning to a person seen on a railroad track must be reasonable and timely, but what is reasonable and timely may depend on many circumstances.
Fuller v. I.C.R.R. Co., 100 Miss. 705, 56 So. 783; Kansas City M. B.R. Co. v. Hawkins, 82 Miss. 209, 34 So. 323; N.O.M. C.R. Co. v. Harrison, 105 Miss. 18, 61 So. 655; A. V.R. Co. v. Kelly, 88 So. 707; Edward Hines Yellow Pine Trustees v. Holley, 106 So. 822; Y. M.V.R. Co. v. Dailey, 127 So. 575.
The admissions of the servants of appellee, that they saw Perry Young when he was three hundred fifty yards ahead of the train on the track, clearly discloses a case for the infliction of punitive damages.
Jamison v. I.C.R.R. Co., 63 Miss. 33; Kansas City M. B.R. Company v. Hawkins, 82 Miss. 209, 34 So. 323; Fuller v. I.C.R.R. Company, 100 Miss. 705, 56 So. 783; A. V.R. Company v. Kelly, 126 Miss. 278, 88 So. 707; Edward Hines Yellow Pine Trustee et al. v. Holley, 106 So. 823; Y. M.V.R. Company v. Dailey, 127 So. 575.
Owen Garnett, of Columbus, and A.F. Gardner, of Greenwood, for appellees.
The amended declaration displaced the original declaration, and was the sole statement of the plaintiff's demand.
Bank of McLain v. Pascagoula Nat'l Bank, 117 So. 124; 1 Enc. of Pl. Pr. 625.
It is only where the injury occurs at a crossing that the statute may be invoked.
Y. M.V.R. Co. v. Cox, 97 So. 7; Skipworth v. Railroad, 95 Miss. 50, 48 So. 964; G.M. N.R. Co. v. Hardy, 117 So. 536, 539; Shirley v. N.W.R. Co., 147 S.E. 705.
The railroad company is only liable for injuries to bare licensees or trespassers when guilty of gross, wilfull, or wanton negligence.
Illinois Central R. Co. v. Arnola, 78 Miss. 787, 29 So. 768; Y. M.V.R. Co. v. Cox, 97 So. 7, 8; Richmond v. D. R. Co., 12 So. 958; Hubbard v. So. Ry. Co., 83 So. 247.
The employees in charge of a railroad train are not bound to stop it every time they see a person on the track. They may not wantonly injure or kill, but they may assume that a man seen on a track, at a place where there is no difficulty in leaving it, will exercise the common instinct of self-preservation, and get off the track before he is reached by the train.
M. O.R. Co. v. Stroud, 64 Miss. 792, 2 So. 171; Moorehead v. Y. M.V.R. Co., 36 So. 151.
A failure to use ordinary care and willful and wanton negligence are very different things, and are not equivalent to each other.
So. Ry. Co. in Miss. v. Free, 95 Miss. 739, 50 So. 442; Howell v. Railroad Co., 75 Miss. 242, 251, 21 So. 746.
Before one can be held guilty of "willful" or "wanton and reckless negligence" the facts must show either that the party knew his conduct would inflict injury, or the facts must show that, on account of the attending circumstances, which were known to him, or a knowledge of which he was chargeable with, the inevitable or probable consequences of his conduct would be the infliction of injury, and with reckless indifference to the consequences, committed the act or omitted to perform his duty.
A.G.S.R. Co. v. Hall, 17 So. 176, 179; Birmingham Ry. Elec. Co. v. Bowers, 20 So. 345, 346; Ga. Pac. Ry. Co. v. Lee, 9 So. 230, 233; 1 Thompson, Commentaries of the Law of Negligence, page 23, sec. 22.
The peremptory instruction was properly given, the plaintiff as sole heir of his deceased brother, absolutely failed to show any damage to himself, and, in fact, negatived damage to himself.
The value of a decedent's life expectancy is not an element of damages to the decedent.
Gulf Refining Co. v. Miller, 150 Miss. 68, 116 So. 295; Natchez Coca-Cola Bottling Co. v. Watson, 133 So. 677.
The damages are measured by the pecuniary loss resulting to the beneficiaries of the action from the death.
Hale on Damages, 426; Rhoads v. Chicago R. Co., A. E. Ann. Cases, 113; Anderson v. Chicago R. Co., 35 Neb. 95, 52 N.W. 840.
To authorize the infliction of punitive damages, the wrongful act complained of must either be intentional, or result from such gross disregard of the rights of the complaining party as amounts to willfulness on the part of the wrongdoer.
Ill. Cent. R. Co. v. Ramsay, 157 Miss. 83, 127 So. 725, 726; Y. M.V.R. Co. v. Mullens, 158 Miss. 774, 131 So. 101; I.C.R. Co. v. Owens, 95 So. 833; Meridian Light Ry. Co. v. Steele, 83 So. 414.
On the 13th day of December, 1930, about noontime, Perry Young, a colored man, sixty years of age, was walking upon the track of appellee railroad company near what is termed in the record as mile post 39, and was there killed by being run over by the train of appellee company presently to be mentioned. This mile post is approximately seventy yards east of a public crossing. The deceased was going west, and was being followed by a long freight train drawn by two locomotives; such a train being commonly called a double-header. The train was maintaining a speed of about twenty-five miles per hour. The engineer of the head locomotive, according to his testimony, saw the deceased when the latter was about two hundred fifty yards ahead of the train. The engineer says that he had already given the whistle signal for the crossing, and that the bell was continuously ringing. The engineer says that he went one hundred yards further after seeing the deceased walking on the track, and that, when the train was within one hundred fifty yards of the deceased, the whistle was blown again, whereupon the deceased instead of getting off the track started running ahead of the train and upon the track. The engineer says further that, when it became apparent that the deceased was probably not going to get off the track, another whistle signal was blown, this signal being such as to order the engineer on the second locomotive "to lap his brakes," and that as soon as this was done the emergency brakes were applied and all other efforts possible were taken to stop the train, but, because of the length and weight of the train, there was a failure to bring the train to a stop before it reached the deceased, although when the locomotive struck the deceased the speed had been diminished to about six miles per hour. Appellant, as administrator of the estate of the deceased, brought suit under the statute, section 510, Code 1930, to recover actual and punitive damages. On the trial, a peremptory instruction for the railway company was granted by the court, and the administrator has appealed.
The testimony given by the engineer was corroborated by several other witnesses. On the part of the plaintiff, however, there was one eyewitness who saw the deceased at the time he was struck, and which witness, according to his testimony, was in a position to see and hear all that was done. This witness swore positively that no signals were given, except that just as the train reached the deceased three short blasts of the whistle were sounded and that the deceased thereupon immediately made an effort to get off the track, but that the warning to him was so late that he failed to get entirely out of the way of the locomotive, and was run over and instantly killed. Other witnesses for appellant corroborate in some measure the testimony of the witness last mentioned, and some of these witnesses testify that no bell was ringing on either of the locomotives.
Thus there was a sufficient dispute or conflict in the evidence upon a material and controlling issue to require that issue to be submitted to the jury. Mobile O.R. Co. v. Johnson (Miss.), 141 So. 581, 582. It is admitted by the appellee railway company that its head engineer saw the deceased walking upon the tracks ahead of the train and going in the same direction, when the train was at a distance of two hundred fifty yards from the deceased; and, although the deceased was a trespasser upon the tracks of the railway company, it is the settled law in this state that, if the engineer after becoming aware of the presence of the trespasser does nothing to warn him by sounding the whistle, and by taking such other reasonable action as would save the trespasser from death or serious injury, the railway company is liable as for a wanton or willful injury. The witness or witnesses for appellant so assert; namely, that the railroad company sounded no alarm, and took no other appropriate action until too late to be of any effect. Fuller v. Illinois C.R. Co., 100 Miss. 705, 56 So. 783; Edward Hines Yellow Pine Trustees v. Holley, 142 Miss. 241, 106 So. 822; Alabama V.R. Co. v. Kelly, 126 Miss. 276, 88 So. 707; New Orleans, M. C.R. Co. v. Harrison, 105 Miss. 18, 61 So. 655; Yazoo M.V.R. Co. v. Daily, 157 Miss. 3, 127 So. 575; Illinois C.R. Co. v. Mann, 137 Miss. 819, 102 So. 853; Yazoo M.V.R. Co. v. Lee, 148 Miss. 809, 114 So. 866; Jamison v. Illinois C.R. Co., 63 Miss. 33.
Appellee contends, however, that the peremptory instruction was proper because no damages were proved as resulting to the plaintiff on account of said death. If it be conceded, for the sake of the argument, that no actual damages were shown, nevertheless, if the state of facts which the appellant's witness undertook to establish be true, appellant is entitled at least to nominal damages, and to have submitted to the jury the question of punitive damages. Yazoo M.V.R. Co. v. Barringer, 138 Miss. 296, 304, 103 So. 86.
Appellee urges also that the amended declaration placed the cause of action solely upon the allegation that the railway company had violated the statute requiring warnings at the approach of a public crossing, section 6125, Code 1930, and appellee calls attention to the fact that it is only when the injury occurs at a crossing that this statute may be invoked. Skipwith v. Railroad Co., 95 Miss. 50, 48 So. 964; Yazoo M.V.R. Co. v. Cox, 132 Miss. 564, 97 So. 7; Gulf, M. N.R. Co. v. Hardy, 151 Miss. 131, 117 So. 536, 61 A.L.R. 1073. And thus, as we understand the contention, it is that there is a variance between the cause of action stated in the declaration and that which was sought to be made out by appellant's proof and upon which latter theory appellant now stands rather than upon the theory stated in the amended declaration. The notices filed by the railway company under its plea of general issue show that the company was aware that the case was actually to proceed upon the common-law liability for failure to give warning to a trespasser on its tracks after the railway company had become aware of the danger; and the entire course of the trial shows that the railway company was in no way surprised or misled by the declaration.
It is said in 49 C.J., page 810, that "modern authorities hold that no variance between the allegations of a pleading and the proof offered to sustain it shall be deemed material if the adverse party is not surprised or misled to his prejudice in maintaining his action or defense upon the merits. Statutes sometimes expressly so provide." And our statute, section 568, Code 1930, exactly so provides. No demurrer was interposed to the amended declaration, nor was there any objection to the testimony on this specific ground. See annotations under section 568, Code 1930; also Yazoo M.V.R. Co. v. Daily, supra, at page 12 of 157 Miss., 127 So. 575.
Reversed and remanded.