Mobile & Ohio Railroad v. Stroud

Arnold, J., delivered the opinion of the court. We consider the declaration to mean that the engineer in charge of the train did not see the deceased in time to stop the train before he was struck, but that he might, or ought to have seen him. In this view the declaration was demurrable. It stated no cause of action. The demurrer to it should have been sustained. The evidence shows less cause for complaint than the declaration. The verdict is contrary to law and the evidence, and should have been set aside. A man who voluntarily gets on a railroad track, sixty feet in front of a train moving toward him at a greater rate of speed than six miles an hour, at a point where there is nothing to obstruct the view or prevent him from seeing the train or leaving the track after he is on it, must take the consequences of his own negligence and folly. If injured by the train, under such circumstances, he is not more sinned against than sinning. He does not exercise reasonable or ordinary care. He cannot speculate or experiment, in such manner, with safety, on the chances of others being more prudent than himself, or of others taking better care of him than he does himself. The negligence of the railroad company in running its train at an unlawful rate of speed, was no excuse for the negligence of the deceased. It was decided in V. & M. R. R. Co. v. McGowan, 62 Miss. 682, that § 1047 of the code, which prohibits locomotives and cars from [793] being run through towns, cities, and villages, at a greater rate of speed than six miles an hour, does not impose absolute liability on a railroad company for an injury done while the statute is being violated, without regard to the conduct of the person injured, or the circumstances under which the injury occurred, and that even where a railroad company violates the statute, one who could by the exercise of ordinary care avoid injury by the act of the company, cannot recover for such injury. According to the declaration and the proof, the deceased was traveling on the railroad track, not for any business connected with the railroad, but for his own convenience. He was not in the exercise of a legal right. He was where he had no right to be. Eailroad tracks are not common highways upon which the public may walk or travel, without incurring the perils of an extremely dangerous position. Those who use them for such purpose must do something to protect themselves from injury by moving trains, before they can justly complain of others. They must see, and hear, and get off the track, and out of the way of passing trains, if there is nothing to prevent them from doing so. Physical infirmities, of themselves, do not relieve one from observing the rules of ordinary care for his own safety. The weakness or imperfection of one faculty will not excuse a failure to use the other. Deafness will not operate to palliate a failure to use the sense of sight. When one is conscious that his hearing is defective, instead of exercising less, he should, rather, exercise greater care in other respects. What is lacking in the sense of hearing, must, if possible, be made up by increased vigilance in looking out for danger with the eye. Beach on Contributory Negligence, § 147. Infallibility is not required by law of railroad companies in the conduct of their business. The employees in charge of a railroad train are not bound to stop it every time they see a person on the track. They may not wantonly injure or kill, but they may assume that a man seen on the track, at a place where there is no difficulty in his leaving it, will exercise the common instinct of self-preservation and get off the track before he is reached by the train. If they see him on the track at a place, or under such circumstances, that [794] he cannot readily leave it in time to avoid injury, or if they discover that for auy cause he is unaware of his peril, then they are bound to stop the train, if it can be done ; but a railroad company is not responsible for injuries resulting to a person on accouut of their employees not seeing him when he is in a place where he has no right to be. In Railroad Company v. Houston, 95 U. S. 697, where the suit was brought to recover damages for the death of a woman struck by a train of the company while she was walking on the railroad track in a village, the Supreme Court of the United States said: “if the positions most advantageous for the plaintiff be assumed as correct, that the train was running at an unusual rate of speed, its bell not rung, and its whistle not sounded, it is still difficult to see on what ground the accident can be attributed solely to the negligence, unskillfulness, or criminal intent of the defendant’s engineer. Had the train been running at an ordinary rate of speed, it would have been impossible for him to stop the engine when within four feet of the deceased. And she was at the time on the private right of way of the company, where she had no right to be. But, aside from this fact, the failure of the engineer to’ sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees in these particulars, was no excuse for negligence on her part. She was bound to listen or to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries, as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that [795] kind. If one chooses, in such position, to take risks, he must bear the possible consequences of failure. Not even a plausible pretext for the verdict cau be suggested, unless we wander from the evidence into the regions of conjecture and speculation. Under these circumstances, the court would not have erred, had it instructed the jury to render a verdict for the defendant.” The doctrine of this case is supported by many authorities, but whether supported or not, it is sound, and conservative of justice and of human life, and must control the cause under consideration. The judgment is reversed, the demurrer to the declaration sustained, and the cause dismissed.