Pulliam v. Illinois Central Railroad ( 1898 )

Woods, C. J.,

delivered the opinion of the court.

The evidence offered by the appellants on the trial below shows these facts: That Henry Pulliam was fatally injured in the municipality of Oakland by cars making a flying switch and running at a speed variously estimated from ten to twenty miles an hour, and that no lookout was kept by the employes of the appellee for persons who might be on the track; that, in fact, two flying switches were made almost simultaneously, oue on the main line and the other on the side track; that the deceased was walking down the main line and left that track to escape the cars being kicked down it, and then stepped upon the side track and was quickly thereafter run over by the cars being kicked down that track.

On the theory of the appellee that the deceased was clearly shown to have been guilty of more than ‘‘mere contributory negligence,” the court below peremptorily instructed the jury to find for the railroad company. From judgment following the verdict thus obtained this appeal is taken.

Section 3548 of the code of 1892 is as follows: “It shall not be lawful for any railroad company, or other person, to switch a railroad car in the manner commonly known as a ‘ flying, ’ ‘ running, ’ ‘ walking ’ or ‘ kicking ’ switch, within the limits of a municipality; and, in case of injury resulting to any person or property from switching in violation of this section, the railroad company shall be liable in damages, without regard to mere contributory negligence of the party inj ured. ’ ’

The object of the legislature in the enactment of this statute is perfectly apparent, as it seems to us. Under the law as declared by the courts prior to the passage of this act, contributory negligence barred recovery, and the manifest legislative purpose was simply to alter the rule on this subject, which had been established by the courts, so as that contributory negligence in cases of injuries inflicted by the highly dangerous and unlawful handling of cars by flying switches should not thereafter bar recovery. It was not the design to introduce into our jurisprudence degrees in contributory negligence. The statute is to be read as if it said contributory negligence simply, or contributory negligence only, shall not bar recovery. Before the statute was enacted, contributory negligence — any contributory negligence — barred. Now, under this section of our code, contributory negligence merely, or only, shall not bar. But, as formerly, so now, wilful and wantonly reckless conduct will bar, but nothing short of conduct of such character will bar the right to recover for injuries inflicted by flying switches in municipalities. This interpretation of this section (§ 3548) was announced in Railway Co. v. Jones, 73 Miss., 110. It was pressed upon us in that case by the counsel for the railway company, that where there is more than mere contributory negligence, the statute has no application. But the court said, in response to this suggestion of counsel, “ The negligence which usually and ordinarily contributes proxiinately to the injury, without which the injury would not have occurred, consisting in the want of ordinary care in the situation, is what is meant by the statute; not the voluntary, deliberate, wilful, reckless exposure of one’s self to injury. ’ ’ The case was clearly one for the jury, and the peremptory charge should not have been given.

Reversed and remanded.