Mobile & O. R. v. Robinson

Smith, C. J., delivered the opinion of the court. This is a suit by the widow and children of W. R. Robinson, deceased, to recover damages from the appellant for the death of Robinson, who is alleged to have been struck and killed by one of the appellant’s engines or cars. At the close of the evidence the court below refused to direct a verdict for the appellant, but charged the jury: “That if they believe from a preponderance of the evidence that the deceased, W. R. Robinson, was injured and killed by the operation of a train of defendant, they will find their verdict for plaintiff.” From a judgment in the plaintiff’s favor the railroad company has appealed to this court. According to the evidence for the appellees, Robinson was found dead on the railroad track at a place where he was necessarily a trespasser thereon, and the wounds on his body and some other circumstances unnecessary to be here set forth indicate that he was struck and killed by one of the appellant’s locomotives. The engineers of each of the appellant’s locomotives which passed the place at which Robinson was found, between the time he was last seen alive and when found, testified that they did [847] not remember whether they were looking ahead or not when they passed the place where Robinson was found, but that they did not see him, and did not know that he had been struck until told thereof a short time thereafter. We have concluded that it will be best on this appeal not to decide whether or not on this evidence the appellant was entitled to a directed verdict, and therefore will express no opinion relative thereto. If the testimony of its engineers is true, the appellant is not responsible for Robinson’s death; for, as he was a trespasser on its tracks, the only duty which the engineers owed him was to exercise reasonable care to prevent striking him after discovering he was on the track. The instruction to the jury to find for the plaintiffs in event they believed from the evidence that Robinson was injured by the operation of one of the appellant’s trains was probably given on the theory that the facts and circumstances surrounding the accident were not fully disclosed, and that consequently the presumption of negligence arising under section 1985, Code of 1906 (Hemingway’s Code, section 1645), was not overturned. It is clear from the evidence that, if Robinson was injured by one of the appellant’s trains, he was struck by an on-coming locomotive. Consequently he must have been on the track in front of it at the time. In so far as his movements are concerned, this is all that is necessary to be shown, in order to determine what duty the appellant’s employees owed him. If it is true that the engineer of the locomotive which struck him did not see him on the track, and was not aware of his peril in time to avoid striking him by the exercise of reasonable care, that is all that is necessary to be known in order to determine whether or not he owed Robinson any duty, and whether or not he violated it. Any further details would be of no value in determining whether or not the engineer was guilty of negligence. This is in accord with the rule on which Railroad v. [848] Cole, 101 Miss. 173, 57 So. 556, was decided. Iu that case the evidence negatived Cole’s being struck by an approaching engine, and indicated that he probably fell under the cars of the train after the engine had passed, but did not indicate what he was doing at the time or what caused him to fall under the cars. Consequently “the attendant circumstances of the accident” remained doubtful, and the court held that because thereof the presumption of negligence arising under the statute was not overturned. It follows from the foregoing that the judgment of the court below must be reversed, because of the error committed by it in granting the instruction to the appellee hereinbeford set out. Reversed■ and remanded. Anderson, J., took no part in the decision of this case.