Morehead v. Yazoo & Mississippi Valley Railroad

Truly, J., delivered tbe opinion of the court. None of the principles of law relied upon by appellant are applicable to the case made by this record. Conceding all for which he contends, a verdict in his favor could not rightfully he sustained. The existence of a custom of certain trains to use tibié main line on all occasions, even if fully proven, would not excuse any one, whether trespasser, licensee, or employe, from the exercise of ordinary care and prudence on his part. See Hackney v. Railroad (Miss.) 33 So. Rep., 723; Railroad v. Crockett, 78 Miss., 412 (29 So. Rep., 162); Railroad v. Arnola, 78 Miss., 787 (29 So. Rep., 768; 84 Am. St. Rep., 645). It cannot be said that appellant was injured by reason of any failure on the part of the master to provide a safe place for the performance of his duties, for the reason that appellant was not at the place where his duty called him. Nor his own convenience, and to save himself the trouble of a few more steps, he chose to walk upon the edge of the track, rather than in the place of safety provided by the company between the main line and the spur track, where, according to the evidence, there was ample room for him- to stand in perfect safety while discharging his duties at the express car. One who, from motives of convenience and from personal choice, chooses the roadbed of a railroad to walk on, when not called there by any imperative duty, assumes all the risks which his own imprudence and lack of caution entail, and, if injured thereby, cannot recover. Murdock v. Railroad, 77 Miss., 487 (29 So. Rep., 25); Railroad Co. v. Jones (Miss.), 35 So. Rep., 193. Under the facts of this case, the engineer was charged with no duty other than the exercise of ordinary care, even after he [124] discovered appellant on the track. Railroad v. Arnola, supra; Railroad v. Stroud, 64 Miss., 784 (2 So. Rep., 171). The case of Christian v. I. C. R. R., 71 Miss., 237 (15 So. Rep., 21), states the rule of the duty of the engineer discovering a person on the track clearly and fully. It was there held that if the engineer saw the person, and it was apparent, or ought to have been apparent, to the engineer that the position occupied by such person was one of peril, and one from which he could not by reasonable action extricate himself, or that the person was unaware of his position of peril, then it was the duty of the engineer to exercise reasonable care to prevent injury. The case at bar does not measure up to any of the requirements of the rule stated by that case. Appellant was not apparently in a place of peril. There was no cul-de-sac. He was walking on a level track, where a single step to either side would have removed him from all danger, as it did his brother, who was walking near him. The engineer had no reason to believe that he was in a place of danger. He had a right to assume that appellant was aware of the approach of the train, and was perfectly familiar with the surroundings; that the performance of his duty did not necessarily call him where he then was; and that he was on his way then to meet and transact business with the train when it should come to a stop. Under these circumstances, there was no duty incumbent upon the engineer which the record does not show he fully discharged. Appellant’s sad case is but another of a long line where persons, growing careless through familiarity, cease to regard with proper care the imminent danger always attendant upon the use of the roadbed of a railroad as a thoroughfare, and neglect to make proper use .of the physical faculties with which they are by nature endowed. Affirmed.