Illinois Central Railroad v. Latiker , 98 Miss. 451 ( 1910 )

Anderson, J.,

delivered the opinion of the court.

Appellee, Latiker, sued the Illinois Central Railroad ■Company, the appellant, for personal injuries, and recovered judgment for the sum of five hundred dollars, from which judgment the appellant prosecutes this appeal. The facts of the case about which there is no dispute are as follows: The alleged injury occurred at Pickens, a station on the line of appellant’s road. There the railroad runs north and south. The depot is on the west side. Next to it on the east side is a side track, and still east of "that is the main line, which are a sufficient distance apart for persons in the exercise of reasonable care to safely stand or pass between them while trains are at the same time passing over each. The sidetrack is two thousand one hundred feet long, eight hundred and fifty feet of which is north of the depot, and the balance south. Theappellee, a hotel porter, went with the baggage of the guests of his hotel, desiring to take passage on the northbound passenger train, due at Pickens at twelve o’clock-midnight, to meet that train, and deposit thereon such-baggage, and to receive that of passengers disembarking, who desired to become guests at the hotel he represented. A few minutes before the arrival of the passenger train appellee took his baggage out of the depot,, where he first went with it, and deposited it on the ground between the main line and side track, at the point of ingress and egress to such train when stopped. At this-time he saw standing at the north end of the side track a freight train headed south. He saw the headlight. In due time the passenger train pulled up and stopped, and thereupon appellee, facing it, stooped over to pick up his grips, and while in that position the crossbeam above the-pilot of the engine, pulling the freight train going soutlion the side track behind him, which was passing at that time, struck him and knocked him down. This freight train was made up of twenty-seven cars and tender and engine; and the eight hundred and fifty feet of sidetrack north of the depot was not of sufficient length to-hold it, and so, in order to clear the main line for the-passenger train to go north, it was necessary for the-engine and some of the cars to pass the depot. The custom was, under these circumstances, which was followed in this instance, for the entire freight train to pass to the south before the passenger train left, so as to give-passengers an unobstructed way to and from the latter. When struck by the engine to the freight train, it was-running from three to four miles an hour. Appellee testified that he did not know the freight train was passing-him until he was struck; and the engineer in charge of the engine pulling it,-testified that he was looking out down the track, and did not see appellee within the sweep •of his engine. The fact is he was not in its way until he stooped over.

The single question in this case is whether the court below should have instructed the jury peremptorily to find a verdict for the railroad company. It may be conceded on the part of appellant that its employes in charge •of the freight train by which appellee was injured were negligent in its handling, in passing to the south between the depot and the passenger train at this particular time; and still appellee is barred from recovery by his contributory negligence, which was the proximate cause of his injury. Even though he did not see or hear the slowly approaching engine, with its headlight blazing on him, lie could have done so by the exercise of reasonable care. He should have used his faculties of hearing and sight, and, if he had, the injury would not have occurred. In Murdock v. Railroad Company, 77 Miss. 487, 29 South. 25, the court said: “Admitting that appellant did not see any engine or” cars other than the twenty-five which stood across his contemplated way, yet it is manifest that the engine and nine cars were there, and near by, and, though appellant did not see them, that fact is not controlling, because the final test is, could and should he Rave seen them under the circumstances testified- to by himself and witnesses? The peremptory instruction should have been given for appellant.

Reversed and remanded.