Illinois Cent. R. v. Mann , 137 Miss. 819 ( 1925 )

Ethridge, J.,

delivered the opinion of the court.

Etha Mann, by next friend, brought suit against the appellant for a personal injury inflicted by the appellant at Belmont, in Tishomingo county. The declaration was in three counts. The first count charged that the train which injured the plaintiff was being operated at an unlawful and excessive and dangerous rate of speed, and that this caused the injury. The 'second count charged that the servants of the railroad company in charge of the train saw the plaintiff in a perilous position on the track, or that by the exercise of ordinary care they should or could have seen him, and that, notwithstanding, they willfully, recklessly, and in a grossly negligent manner operated said train, and thereby caused plaintiff’s injury. The third count of the declaration charged that the servants of the railroad company in charge of the.train were charged with the duty to keep a lookout for persons at the point where this injury occurred, and that they disregarded their duty on this ¡particular occasion, and that the breach of this duty caused plaintiff’s injury.

The defendant pleaded the general issue, and gave notice thereunder that the accident occurred outside of the restricted speed territory. There was a verdict for the plaintiff, from which, the defendant appeals.

It appears from, the plaintiff’s evidence that he had gone that morning on the right of way for the purpose of grazing a cow, which w;as a customary practice at that point of the people living in that community; that he laid down on the cross-ties and went to sleep, and while asleep he was struck and knocked from the track by the train of the defendant. The injury occurred some two thousand two hundred feet north of the depot at Belmont, and south of a curve in the track above Belmont ; the distance from the curve to where the boy was injured being one hundred fifty to two hundred feet. The inside of the curve was on the east side of the railroad, and the outside of the curve was on the west. The boy was on the east side, as he contends. The injury occurred to his knee, and was a permanent injury, according to the attending physician, and the boy suffered considerable paid. On his knee, just below the knee, there was a stain from grease smut, caused by some part of the train.

The engineer and fireman both testified that they were on the lookout, and did not see the boy on the track. The fireman was on the inside of the curve, where the boy was injured, and testified that, if the boy had been there in the position he testified he was in, he, the fireman, could have seen him five hundred or more feet up the track, and that the train, at the speed at which it was going and the number of cars being carried, could have been stopped within one hundred feet. The engineer testified that on his side of the train he could not see an object on the opposite side at a less distance than one hundred fifty feet. Both the engineer and fireman testified that it would have been the duty of the fireman to have given notice immediately, had he seen the boy, and that with such notice they could have stopped the train within one hundred feet of where the accident occurred.

The defendant also offered another boy, who testified that he was present at the time of the injury, and that the injury was inflicted by the plaintiff’s attempting to swing the train; that he attempted to swing the train, and missed his footing, and was thrown to the ground, and the witness became frightened and ran away. The plaintiff denied this statement of the defendant’s witness as to his being present, and offered two other witnesses, who testified that such witness was not in Belmont on the day of the injury, but that he was visiting a relative living in another place on that day.

The appellant relies upon Y. & M. V. R. R. Co. v. Huff, 111 Miss. 486, 71 So. 757; Y. & M. V. R. R. Co. v. Smith, 111 Miss. 471, 71 So. 752; Railway Co. v. Williams, 69 Miss. 631, 12 So. 957. While the appellee relies on A. & V. Ry. Co. v. Kelly, 126 Miss. 276, 88 So. 707, and Jamison v. I. C. R. R. Co., 63 Miss. 33. These cases are not in conflict, and it is for decision as to whether the Kelly Case and the Jamison Case, supra, were controlling, or whether the cases of Railroad v. Huff, Railroad v. Smith, and Railroad v. Williams were controlling.

As above stated, it appears from the testimony that the engineer and the fireman were each keeping a lookout ahead. They intended to stop' and take a side track for a passing train at the south end of the passing track at Belmont. The fireman was in a position to see the plaintiff, and testified that, if the plaintiff had been at the place he claimed he was, he would have seen him, and that he did not see him, although he was keeping a lookout; that he never saw him at all; that he did not know, until later, that the plaintiff had been injured.

The plaintiff testified that he was at a point which, if true, was in the line of vision of the fireman, and would necessarily have arrested his attention if the fireman’s testimony were true, and this presented a question for the jury’s decision, under the Kelly Case and the Jamison Case, supra. It may be that the railroad company at this point was under no duty to keep a. lookout, and quite a different question would have presented itself, had the fireman testified that he did not keep a lookout.

The railroad company owes no duty to a trespasser until hi¡s presence is discovered, but after discovery it is then its duty to prevent the injury, if that can be done. Whether the engineer discovered the plaintiff’s position of. peril, under the facts in this record, is a question for the jury. This being true, it is unnecessary to decide whether the railroad company was under any duty to keep a lookout, or to ring the bell or blow the whistle, and consequently the judgment must be affirmed.

Affirmed.

* Headnotes 1. Railroads, 33 Cyc., p. 902; 2. Railroads, 33 Cyc., pp. 787, 795.