Bonds v. Mobile & O. R. Co. , 125 Miss. 547 ( 1921 )

Holden, J.,

delivered the opinion of the court.

Appellant, Karlton Bonds, sued the appellee railroad company for damages for the loss of his left foot, which was crushed by one of the appellee’s trains in 1902 when the appellant was seven years of age. The injury occurred within the corporate limits of the town of Baldwyn while the train was running at an unlawful rate of speed, between twelve and fifteen miles per hour. The appellant was following a negro man across the railroad track when the train was passing. ■ The negro man crossed over or through the train to the other side of the track, but the appellant either attempted to get on the train or to cross in some way to the other side and was injured on the rail by the wheels running over his foot. After he was injured he managed to get back clear of the track where he was afterwords picked up.

At the trial the appellant did not recollect and did not testify as to how the injury occurred, except that he remembered he approached the train, but could not say in what way or how the train injured him. There was no other testimony offered to show how the injury occurred. The blood on the rail and other circumstances showed that the injury was caused by the running of the cars.

At the conclusion of the plaintiff’s testimony the court sustained a motion to exclude the evidence and grant a peremptory instruction for the railroad company, from which judgment this appeal is prosecuted.

The plaintiff’s declaration contained two counts, one based on our prima-facie negligence statute (section 1808, Code of 1892; section 1985, Code of 1906; section 1645, Hemingway’s Code); and the other count was predicated on the excess speed statute in incorporated municipalities (section 3546, Code of 1892; section 4043, Code of 1906; section 6667, Hemingway’s Code). The defendant railroad company pleaded the general issue. There was no plea of contributory negligence nor the statute of limitation.

The reasoning of the learned circuit judge which led to his conclusion that the appellant was not entitled to recover seems to have been based upon the theory that the evidence sufficiently disclosed the manner in which the injury occurred as to show no negligence of the railroad, and that, while the speed of the train was in violation of the law, such speed was not the proximate cause of the injury. And counsel for the appellee urges here the same reasons in support of the correctness of the judgment of the lower court.

The argument of counsel for the appellee, in .substance, is that the testimony offered by the plaintiff was sufficient in explaining how the injury occurred, and could lead to no other reasonable conclusion than that the appellant, who was a trespasser, voluntarily came in contact with the moving train by either attempting to get on it, go between it, or under it to the other side of the track, and that therefore the injury resulted from no negligence of the railroad company, but was caused solely by the negligence of the appellant. In this way counsel contends that the prima-facie statute has been met by proof of the facts explaining the injury, and that, having thus shoAvn no negligence on the part of the railroad company, the statute goes out of the case; 'and, in the absence of testimony showing that the injury was caused by the negligence of the railroad company, the appellant must fail to recover. This position might not be untenable if it were not for the fact that the negligence of the railroad company is shown by proof of the unlawful rate of speed of the train at tbe time of the injury.

When the unlawful rate of speed at the time of the injury was shown, the negligence of the railroad company in that regard was established, and it became necessary for the railroad company, before it would be entitled to a peremptory instruction, to exonerate itself by proof that the negligence on account of the speed was not the proximate cause of the injury. Therefore, when the plaintiff established the fact that the injury was caused by the running of the cars and that the speed was unlawful, per se negligence, it was then incumbent upon the railroad to exculpate itself by showing that its negligence in running the cars did not cause the injury.

The case seems to be unusual in this, that the proof of negligence in the' unlawful speed coupled with the proof of the injury by the running of the cars prevented the ap-pellee from freeing itself under the prima-facie statute. The burden under the prima-facie statute not having been met by the railroad company, we think it was error for the lower court to grant the peremptory instruction to the defendant’.

The prima-facie and speed statutes have been so often construed and applied by this court that we see no good purpose in discussing our decisions in that .regard. The Thornhill Case, 106 Miss. 109, 63 So. 674, is a good discussion of the primafacie statute. The Handy Case, 108 Miss. 422, 66 So. 783, and the Pace Case, 109 Miss. 667, 68 So. 926, may be cited as pertinent on the unlawful speed statute.

We know of no other case precisely, like the one now before us; but it seems clear that, in order for the defendant to overcome the presumptive negligence charged against it by the prima-facie statute, it must appear from the evidence'in the case that it was not guilty of negligence in any substantial regard at the time which resulted in the injury. That it was guilty of negligence by violation of the speed law, which negligence may or may not have proximately caused the injury-, is shown by the testimony in the case. This being true the presumption of the statute must be met in order to defeat a recovery.

The judgment of the lower court is reversed, and the case remanded.

Reversed and remanded.