Louisville, New Orleans & Texas Railroad v. Thompson

Arnold, J., delivered the opinion of the court. The instructions given and refused, and the rulings of his" Honor, the circuit judge, throughout the trial display accurate •comprehension and discrimination as to the principles of law involved in the case. Without darkening counsel by words, and without exploring or attempting to make any contribution to the learning in regard to contributory negligence, it may be said with •entire confidence that on the facts produced in evidence by appellee, many of which are not controverted, appellant is answerable for •damages in the cause, unless a railroad company in the prosecution ■of its business may set a trap for people, and after a man has been •caught in it and killed or injured, escape liability by assuming the position that he ought to have had more sense and discretion than to have been deceived or misled by the contrivance. If there is .any authority which supports such defense we decline to follow it. Whether appellant was under obligation to make an opening •through its freight train for the benefit of the public at or about •the depot when it was on the side-tracks between the d.epot building and the main track, it did in fact make an opening, and had done so habitually before, which was and had been used by the public generally without objection by appellant. The action of [594] appellant in this respect amounted to an inducement and invitation to the public to avail of the opening thus made for the purpose of passing across the side-track. Under these circumstances it was the duty of the railroad company to use reasonable care and prudence to protect persons from injury crossing the track at that point. Murphy v. Boston and Albany Railroad Co., 133 Mass. 121 ; Sweeny v. Old Colony Railroad Co., 10 Allen 368; Stewart v. Pennsylvania Railroad Co., 14 Am. and Eng. Railroad Cases 679. Appellee was bound at his peril to act under the circumstances as a reasonable and prudent man, and if acting thus he was injured^ he was entitled to indemnity if by ordinary and reasonable care on the part of the railroad company the injury might have been avoided. Bardwell v. M. & O. Railroad Co., 63 Miss. 574; V. & M. Railroad Co. v. McGowan, 62 Ib. 682; V. & M. Railroad Co. v. Alexander, Ib. 496. This was the view of law submitted to the jury, and the facts warranted the conclusion which they reached. It cannot be said that' the damages of fifteen thousand dollars awarded by the jury are excessive. We apprehend that but few if any persons would submit to the injury and suffering sustained by appellee for that sum. • If the theory of law propounded by appellees’. counsel in his argument to the jury in regard to the obligation of the railroad company to open the freight train, so that any one might pass through when the passenger train was at the depot, was deemed unsound, appellant should have asked instruction from the court for the jury on that point. There was no such abuse of the privilege of counsel in the matter as to call for correction here. There is no error in the record and the judgment is affirmed.