Sledge v. Yazoo & Mississippi Valley Railroad ( 1905 )

Calhoon, J.,

delivered the opinion of the court.

This action is based on Code 1892, § 3549, giving injured persons the right to “recover full damages, without regard to mere contributory negligence,” in cases where the injury results from backing cars within fifty feet of a passenger depot, unless preceded by a servant of the railroad company to give warning. This is held not to be available to those suffering because of their own voluntary, deliberate, willful, reckless exposure. Pulliam v. Railroad Co., 75 Miss., 627 (23 South. Rep., 359); A. & V. Ry. Co. v. Jones, 73 Miss., 110 (19 South. Rep., 105; 55 Am. St. Rep., 488). Sledge was an employe of appellee, and had Been such, as he says, “for a pretty good while,” to clean out engines and ash pans. One night, being off duty, he had occasion to cross the railroad. There was an opening of about six feet between two parts of a train, through which employes were authorized and accustomed to go, to and from their work, and through this he intended to pass. Getting to this opening of the train, which was on a sidetrack, on one end fronted a box car. and on the other a flat car, and he stopped a few moments with his elbow on the flat car. From this position he was about to move across the track. To use his own words, he was just “fixing to step.” At this moment he saw the part of the train ending with the box car moving on him. If he had stepped back one step, he would not have been hurt'; if he had stood stock-still, it is likely he would have been safe. But he thought he could pass through in the direction he was going, and tried to do it by a quick movement. Even then he was absolutely safe, but for the casualty that his pocket caught on the knuckle of the flat car, thus throwing him and causing the sad result. Section 3549 does not apply to a case like this, and the peremptory instruction was proper.

Affirmed.