Dooley v. Mobile & Ohio Railroad , 69 Miss. 648 ( 1892 )

Woods, J.,

delivei'ed the opinion of the court.

Houston Dooley, a youth of the age of nineteen years, when he received the deplorable injuries of which he complains, was gratifying an empty curiosity at a place where he had no right to be. The railroad servants were only bound not to inflict wilful or wanton hurt upon him. The appellee was using its side-track, on the end of one of the cross-ties of which the appellant was standing, to set in a freight-car thereon for convenient unloading of its contents at the door of the depot used for that purpose, and, from the impact of this slowly rolling car, the appellant might and could have easily escaped if he had paid the slightest 'attention to his situation and to the danger of standing on or near a track being used for setting in thereon a car.

This was no flying-switch made over highways or crossings, or at a point where spectators, or even persons desiring to embark on appellees’ trains, were invited to go or stand.. It was the setting in upon a side-track, of a car, and permitting it to roll by its own momentum at the rate of two or three miles an hour, over a line to which the railroad .company had exclusive right of occupancy and use, and under the control of a brakeman with proper appliances for stopping it at its destination or elsewhere, if made sensible of the necessity of so doing.

It is the plain and painful case of an inattentive person using the track of a railway where he had no right to be, and where the company had a right to expect an unobstructed way at all times, and in such manner as to absolve others from all liability for any injury — short of wilful and wanton hurt — that may occur.

The appellee owed the appellant no duty until he was seen by its servant in charge of the moving car, and, indisputably, the brakeman never saw the unhappy youth until he was taken, crushed and mangled, from under the trucks.

The record presents a pitiful case, which appeals powerfully to the sympathies of men; but, to reverse this judgment and remand the cause with the view to permitting the appellant to secure a recovery against the railroad company, would amount to an invitation to legalized spoliation.

Affirmed.