Illinois Central Railroad v. Sumrall

■Whitfield, 0. J., delivered the opinion of the court. The facts in this case which 'control, very briefly stated, are as follows: Luther Sumrall, for whose death this suit is brought, left the store of a man named Beecham, very soon before the killing, went east to the depot, and then went north along the common traveled way between the north and south bound tracks of the Illinois Central Railroad, a distance of about four hundred and forty yards from the depot crossing, and just as he turned to the right on Finch’s crossing in the city of Wesson, and raised his foot to step onto the track, he was struck by the pilot beam of the engine and killed. The declaration was framed on the theory of ordinary negligence merely on the part of the railroad company, the charges were all given upon that theory alone, and the evidence was addressed to sustain that theory of simple ordinary negligence on the part of the appellant. There is not a hint in the declaration, nor in the charges on either side, about willful and wanton negligence on the part of the appellant company. The defense of the railroad company was contributory negligence on the part of the deceased in not exercising the senses of sight and hearing for his own protection. It would seem that he never once, during the four hundred and forty yards distance he walked north between the two tracks, turned to look south down the track, when simply to look was to live. It is certain that he did not look; for, if he had looked, he must necessarily have seen the train, and could have easily avoided the danger. It is certainly extraordinary that a normal man would walk between two railroad tracks a distance of four hundred and forty yards, and never once turn to look for an approaching train. Never once does he seem to have thought about a train, until he had raised his foot to go upon the railroad track at Finch’s crossing, when, suddenly becoming apprised of his peril, he attempted to draw back, but too late. The theory upon which the plaintiff below proceeded, as outlined in her charges in this case, was that the deceased had the [866] right to assume that the railroad company would not violate tbe law by running through this incorporated town at a rate of speed in excess of six miles an hour. Undoubtedly the plaintiff did have the right to indulge that assumption; but it does not at all follow from this right on his part so to assume, that he was, by virtue of his right to indulge such assumption, absolutely absolved from the exercise of the ordinary care required of the average man situated and circumstanced as he was. The deceased had no right, because he could assume that the railroad company would not thus violate the law as to excessive speed, to put his life at hazard on the notion, because of such an assumption, that he could discharge himself absolutely from the exercise of his faculties of sight and hearing, and proceed upon the theory that the company would be liable to him for injury, merely because of such assumption, notwithstanding he might himself fail to exercise in the slightest degree that ordinary care • required of the average man, the exercise of which would have relieved him from any peril. The duty of the railroad company and the duty of the decedent as to the exercise of ordinary care by each, at the time and place of this killing, was a reciprocal duty, the exact limits of which have never been better stated than in the case of Vicksburg, etc., R. Co. v. McGowan, 62 Miss. 682. It certainly cannot be necessary to do more than to refer again to that case. It is a wholly fallacious line of reasoning which maintains that the railroad company absolutely insures and guarantees the safety of a normal person walking along its tracks, although he may violate all the rules of ordinary care which the situation imperatively demands he should exercise, merely because the railroad company has exceeded the rate of speed allowed by law. Certainly it was negligence in the railroad company to run through an incorporated town at more than six miles an hour; but just as certainly it was negligence of the most manifest kind for the deceased, situated and circumstanced as he was, to walk up a railroad track four hundred and forty [867] yards, without once looking behind to see if a train was approaching, and attempt to cross the track without once looking. Here is a case of negligence both on the part of the railroad ■company and on the part of the deceased. The duties and the obligations of both the deceased and defendant were reciprocal •each to the other. The failure of the railroad company to observe its duty did not absolve the deceased from the duty he was under to use, at the time and place and under the circumstances, the care his peril demanded. We think that the peremptory ■charge to find for the defendant on account of the contributory negligence of the deceased, contributing directly to his own death, on the facts in this record, should have been given. It cannot be said, in view of the course this case took in the court below, that the plaintiff can ask here for an affirmance on the idea that the testimony may show a ease of willful and wanton negligence •on the part of the defendant company. The case of Yazoo, etc., R. Co. v. Schraagg, 84 Miss. 125, 36 South. 193, settles that. The plaintiff chose her line of battle in the court below. She ■stood on the ordinary negligence of the railroad company. She never hinted at willfulness and wantonness on the part of defendant. All her instructions were along that line, and it is too late now to attempt to shift the ground on which a recovery is sought in this court for the first time. If, in view of the testimony set out in the record, the plaintiff had averred willful and wanton negligence on the part of the railroad company, and sought recovery along that line, a very different case would have been presented for our determination. We are limited, however, hy the case as it was presented in the court below, and on that case, as shown by the record, a peremptory instruction should have been given for the railroad company. Reversed and remanded.