Billingsley v. Illinois Central R. R.

McLean, J,, delivered the opinion of the court. This is a suit by 'the appellant against appel Lee for personal injuries caused by the running of the cars. The plaintiff was injured in an effort to reach her seventeen months old baby, and to save, as she supposed, its life. The plaintiff’s home was situated a very short distance, between thirty-five and forty steps, from the railroad track. She was in her house, and came out on the gallery, and, missing her baby girl, saw her cm or near the — 622 — railroad track, and at the same time saw the approaching train. Immediately the mother frantically ran to rescue her child, and as she crossed the track, the child being on the opposite side, was injured by the passing train. There is a sharp conflict in the testimony as to whether or not plaintiff was struck by the engine. There is some conflict in the testimony as to whether or not the statutory signals required at railroad crossings, as to ringing the bell and blowing the whistle of the engine, were given. The testimony on the part of the plaintiff is to the effect that these signals were not given There is not a particle of conflict in the testimony as to what the persons in charge of the train did when they saw the child. After the plaintiff closed her evidence, every member of the train crew was put on the stand, and testified to the facts relating to this injury. The engineer first testified, and he stated, in substance, that he and his fireman and one of the brakemen were on the engine and keeping a lookout. The brakeman was in the cab on the fireman’s side, and with the fireman. After having testified as to having given the signals as required by the statute for public crossings, he says as follows: “When I got up near the crossing (some four hundred or five hundred yards), I saw a little child on the east side of the track, and coming toward the track on the crossing, but had not reached the track when I saw it. I says: ‘0, Lord, God! There is a baby!’ and I threw the brake in the emergency and reversed the engine, and pulled the sand lever open, and did everything I could to stop the train.” In answer to the question, “What else could you do to stop the train?” his answer was, “Not a thing in the world.” And, further, “When I saw the child coming toward the track, I used every means to stop the train just as quick as I could use my hands. I done it in a second.” He and the other employees testified that the engine and train were properly equipped with air brakes, was in good working order, — 623 — and that everything was done which was possible to be done in order to stop the train and avoid running over the child. The engineer further says that he saw the mother when she ran across the track about thirty feet ahead of the engine, and picked up the child which was over on the north side of the track. This testimony of the engineer was corroborated by the fireman and the brakeman, who were on the engine, and also as to the emergency brakes being applied; and as to the engine and train being in good order and the emergency brakes being applied the flagman and the conductor also testified. When the engineer first saw the little child close tó and approaching the track, the train was running at a rate of speed of about twenty-five miles an hour. By the time the engine reached the crossing the speed of the train had been very materially reduced from twenty-five to something like five or six miles an hour. The train was a freight, with from twenty-five to thirty cars. The evidence showed that those in charge of the train were competent and skillful men, and understood their business. There was not a particle of evidence in the record that either directly or indirectly, or in any way, contradicted the evidence on behalf of the defendant. Mrs. Billingsley testified that, when she first saw the child on the track, she also at the same time saw the train, and that the train was some four or five telegraph poles distant from the crossing where the child was; and the evidence discloses that the distance between the telegraph posts is about one hundred yards. After all the evidence was in, the court gave a peremptory instruction to find for the defendant. The case is here on that one proposition. There being conflict in the testimony as to whether tlie statutory signals required to be given at public crossings were given, we must resolve this question in favor of the plaintiff, and must assume that the signals were not given. It may be said that proof of injury by the — 624 — running of the cars is prima facie evidence of liability on the part of the defendant by virtue of the statute (Code 1906, section 1985). Fuller v. I. C. R. R. Co. (opinion this day delivered) 56 South. 783. Does the evidence overcome this presumption? In order for liability to be fastened upon the defendant, it is necessary that its negligence should be the proximate cause of the injury. Let it be borne in mind that the party injured and the party suing is the mother, and not the child. Prom all the. facts in evidence — and let it be understood that all the facts and all the circumstances in any way relating to the injury were testified to by the witnesses for both the plaintiff and the defendant — it is manifest that negligence upon the part of the defendant did not cause the injury. What is or what is not the proximate cause of an injury seems to be incapable of any strict definition which will suit every case. Proximate cause is said to be a “vexed metaphysical question;” but it can be safely said that, in-order to constitute a proximate cause, there must be causal connection between the injury and the negligence complained of. While the defendant was negligent in failing- to give the signals for the crossing as required by law, the plaintiff cannot complain, because she saw the train long before it reached the crossing, and there was no causal connection between the failure to give the signal and the plaintiff’s injury. The purpose and object of requiring these crossing signals to be given is to warn persons who are about to cross the track, or those whose teams are so near the crossing as, reasonably and naturally, may be expected to become frightened by the train, and thus give the parties an opportunity to get the team away from the track. Such was the conclusion of this court in Skipwith v. R. R. Co., 95 Miss. 50, 48 South. 964, relied on by appellant. It is urged with great ability and ingenuity that, if these signals had been given. — 625 — the mother would have gone in search of her child earlier — in ample time to have rescued the child, and have removed herself from danger. In the argument of this' proposition, the able and astute counsel for appellant place themselves upon the springboard of imagination, and leap into the realm of conjecture. Their argument upon this proposition is conjecture, pure and simple; and in such an instance “experience becomes an infant and speculation a contingency.” Judgments of courts and verdicts of juries should not rest upon, so airy a foundation. The mother in g'oing upon the railroad track at the time and under the circumstances, in order to rescue her child from impending danger, was surely not guilty of any contributory negligence. We base our conclusion solely upon the proposition that the proximate cause of the injury was not the negligence of the defendant. In the Fuller case, this day delivered, we hold that the simple proof of injury by the running of the cars is prima facie evidence of liability; but we further say that presumptions in all cases must yield to the facts, that, when all the facts relating to the injury are in evidence and there is no conflict, the court has a right to draw a conclusion-based upon the facts, and in proper cases to give a peremptory instruction as these facts may justify. We further say in.that case that positive, direct evidence as to the time when parties are seen upon the track and as to the skill and diligence used thereafter to avoid the injury is not indispensable; that these facts may be proved by circumstances, and are inferences to be drawn by the court or jury in applying their common observation and experience. We so hold in this opinion. The facts relating to the cause of the injury completely exonerate the defendant, and, if a verdict had been returned by the jury upon the proven facts, we would not permit the verdict to stand. If credence is to be given to human testimony, it must abide with the testimony of — 626 — the defendant’s witnesses in this ease. The engineer, fireman, brakeman, flagman, and conductor, all of the train crew, went upon the witness stand and answered, without evasion or subterfuge, all interrogatories propounded. They came out unscathed from under a hot fire of the searching cross-examination, conducted by artful and learned lawyers, with a few inconsequential discrepancies upon irrelevant and immaterial matters— just enough to demonstrate that the evidence liad not been manufactured; and their evidence, taken as a, whole, was symmetrical and forceful, and stands forth in the record, clear and distinct, like, silhouetted against the sky, the human figure of an undressed gladiator, perfect in all of its’parts. Affirmed.