Alabama & Vicksburg Railway Co. v. Summers

Cooper, J., delivered the opinion of the court. The appellee has recovered the judgment appealed from for the death of his wife, occasioned by a train of the appellant while making a “ running or flying-switch” in the city of Vicksburg. The main line of appellant’s road near the place of the injury lies nearly .parallel to Water street, and some twenty-five feet to the east of a dummy line, which is either upon a part of Water street or a little east of it. At a point on the main line of defendant’s road, stated by the witness to be from one hundred and twenty to one hundred and sixty-five feet northeast of the place where Mrs. Summers was killed, another line of defendant’s road, known as the river line, intersects the main line. This river line leaves the main line on a curve toward the southwest, crosses the dummy line and Water street, and runs to the bank of the Missis-' sippi river. On the day of the injury, the deceased, with a bundle of clothing-on her head, was walking southward along the dummy line (where many people were accustomed to walk), and, while she was some distance north of the intersection of the river line of appellant with the dummy line, a train of the appellant going north met her and passed on, she continuing to walk south. This train passed some distance north of the intersection of the main line and the river line, and then started south to make the switch, called by various witnesses a flying, running, walking, or dropped switch. Whether it is one or the other seems to be determined by the rate of speed at which the train is running when the switch is made. The witnesses differ as to the rate of speed on this occasion, some saying the engine ran at a speed of fifteen or twTenty miles an hour, while others say it did not exceed five or six miles. However this may be, what was done was this : The train, having met deceased and proceeded north, started south, and after momentum had been given to it, the two rear cars were detached. The speed of the engine and other cars was then accelerated, so that they should clear the switch at the intersection of the main and river lines before the detached cars reached that point. The engine and cars thereto attached proceeded down the main line, but the detached cars, on [572] reaching the intersection, were switched off on the river line, and, running thereon, struck the deceased just as she was passing across the same along the dummy line. The engineer and fireman, seeing and appreciating the danger, attempted to warn the deceased by blowing the whistle and ringing the bell and calling to her, but the brakeman on the detached cars seems not to have seen her until too late to apply his brakes and check the speed of his cars. At the instance of the plaintiff, the coui't instructed the jury that the act of the servants of the defendant, in making the running or flying-switch across Water street, was negligence per se, and that if the deceased was not guilty of contributory negligence, the plaintiff was entitled to recover, and refused a peremptory instruction asked by the defendant because of the contributory negligence of the deceased. We approve the action of the court in both respects. It is negligence for a railroad company to make a flying-switch across the streets of a town, along which people are constantly accustomed to travel. Fulmer v. Railroad Co., ante, 355 ; French v. Taunton Branch R. R. Co., 116 Mass. 537; Brown v. R. R. Co., 32 N. Y. 597 ; R. R. Co. v. Garvey, 58 Ill. 83 ; Beach on Con. Neg. 223. Whether the deceased exercised reasonable care and prudence under the circumstances in which she acted, was also properly submitted to the jury. No trains were at the time of the injury being run on the dummy line, along which she was walking, that line being then in temporary disuse. Walking as she was towards the south, she could readily observe any train approaching from that direction. The train on appellant’s main line had just met her and passed to the north, and, returning, the principal part of it, attached to the engine, had again passed along the main line going south. We cannot say, as matter of law, that it was contributory negligence on the part of the deceased not to foresee and guard against the unlawful and negligent act of the defendant in making the flying-switch by which a part of the train was shifted to another track and sped along its dangerous course behind her. The question was fairly submitted to the jury, and we are not prepared to [573] dissent from the conclusion it reached. French v. Taunton R. R. Co., 116 Mass. 537 ; Craig v. New York R. R. Co., 118 Ib. 431 ; Gaynor v. R. R. Co., 100 Ib. 208 ; R. R. Co. v. McGowan, 62 Miss. 682. The judgment is affirmed.