Fuller v. Illinois Central R. R. by Supreme Court of Mississippi Lyrics
Citation: 56 So. 783
MCLAIN, J.
The plaintiffs in the court below brought suit against the railroad company for the killing of their father, Mr. S. A. Fuller.
The facts in evidence are these: . . . Mr. Fuller, on the evening of December 2, 1909, between 5:30 and 6 o'clock p. m., approached and drove upon and undertook to cross the railroad track. He was seated in a one-horse wagon, and the wagon was being drawn by one horse. The evidence is that he was driving slowly; that he neither stopped, looked, nor listened for any approaching train before he got upon the crossing; that he never turned his head either to the right or to the left, but, upon the other hand, was facing the direction in which he was going, almost north. The train which killed Mr. Fuller was about thirty minutes late. It was a passenger train consisting of two passenger coaches, a baggage, and express car and an engine and tender, and was running at a high rate of speed--at a speed greater than it was in the habit of running. At a distance of nine hundred feet from this crossing was the whistling board for Kosciusko. The crossing at which the injury occurred was just outside of the corporate limits of the city of Kosciusko. When the train reached this whistling board, it gave the signal for the station, which was a long blast of the whistle. No other signal or warning whatever was given until just before the collision between the engine and the wagon in which Mr. Fuller was, when two short blasts of the whistle were given, and immediately thereafter the wagon in which Mr. Fuller was driving was struck and the wagon demolished, the pieces scattered for a long distance up the track, and Mr. Fuller was hurled some feet and instantly killed. At the time of the collision the horse had passed over the crossing, and the wagon, that portion of it wherein Mr. Fuller was seated, was in the center of the track. The uncontradicted evidence is that by the proper application of the air brakes and the sanding of the track this train could have been stopped within a distance of two hundred feet. The train was running at the time of the collision from thirty-five to forty miles an hour. There. was no evidence at all that those in charge of the train made any effort whatever either to stop or check the train. The record is absolutely silent as to what those in charge of the train saw or did. Mr. Fuller was an old man, had passed his three score years and ten; and from the evidence it is clear that he was unconscious of his danger, being probably absorbed in other matters. At the close of plaintiff's evidence, the defendant made a motion to exclude from the jury all of the evidence which was sustained, and thereupon a peremptory instruction was given to the jury to find for the defendant, and the jury so found. From this an appeal is prosecuted to this court, and the exclusion of the evidence from the jury and the granting of the peremptory instruction are the errors assigned.
* * *
The rule is settled beyond controversy or doubt, first, that all that is required of the railroad company as against a trespasser is the abstention from wanton or willful injury, or that conduct which is characterized as gross negligence; second, although the injured party may be guilty of contributory negligence, yet this is no defense if the injury were willfully, wantonly, or recklessly done or the party inflicting the injury was guilty of such conduct as to characterize it as gross; and, third, that the contributory negligence of the party injured will not defeat the action if it is shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequence of the injured party's negligence. This last principle is known as the doctrine of the "last clear chance." The origin of this distrain is found in the celebrated case of Davies v. Mann. The plaintiff in that case fettered the front feet of his donkey, and turned him into the public highway to graze. The defendant's wagon, coming down a slight descent at a "smartish" pace, ran against the donkey, and knocked it down, the wheels of the wagon passing over it, and the donkey was killed. In that case Lord Abinger, C. B., says: "The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there. But, even were it otherwise, it would have made no difference, for, as the defendant might by proper care have avoided injuring the animal and did not, he is liable for the consequences of his negligence, though the animal might have been improperly there." While Park, B., says: "Although the ass might have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on the public highway or even a man lying asleep there, or probably running against the carriage going on the wrong side of the road." It is impossible to follow this case through its numerous citations in nearly every jurisdiction subject to Anglo-American jurisprudence. For the present it will be sufficient to say that the principle therein announced has met with practically almost universal favor. It has been severely criticized by some text-writers. The groans, ineffably and mournfully sad, of Davies' dying donkey, have resounded around the earth. The last lingering gaze from the soft, mild eyes of this docile animal, like the last parting sunbeams of the softest day in spring, has appealed to and touched the hearts of men. There has girdled the globe a band of sympathy for Davies' immortal "critter." Its ghost, like Banquo's ghost, will not down at the behest of the people who are charged with inflicting injuries, nor can its groanings be silenced by the rantings and excoriations of carping critics. The law as enunciated in that case has come to stay. The principle has been clearly and accurately stated in 2 Quarterly Law Review, p. 207, as follows: "The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it."
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So far as the point involved in the instant case is concerned, Ensley R. R. Co. v. Chewning is directly in point. The defense in that case was that the plaintiff was guilty of contributory negligence. The court says on this subject: "The court instructed the jury that, 'if the plaintiff himself were negligent or at an improper place when he was struck, yet if the engineer saw his peril in time to stop the train and could have stopped it before the plaintiff was struck and failed to do so, and plaintiff did not know of his danger, then the defendant is liable and the jury should so find.' We have repeatedly held that, when persons in charge of a train discover the perilous position of one on the track though a trespasser, it becomes their duty to use reasonable care to prevent the injury, and the failure to do so is reckless or wanton negligence. This is the proposition of the charge, but defendant insists that there is no evidence tending to show reckless, wanton, or wilful negligence. The insistence is rested on the ground that, 'if the engineer be believed, he did everything in his power to save him, and that his evidence is uncontradicted; on the other hand, if his testimony be disregarded, then there is no evidence tending to show that plaintiff was ever discovered, or that the engineer did not make every effort in his power to prevent the accident. In either event, that the charge was abstract.' Positive, direct evidence as to the time when plaintiff was first seen, and as to the skill and diligence used thereafter to avoid injury, is not indispensable. These facts may be proved by circumstances, and are inferences to be drawn by the jury in applying common observation and experience, to whom the question was submitted." The facts in the instant case show that for a distance of six hundred and sixty feet west of the crossing where Mr. Fuller was run over and injured the track was perfectly straight; that there were no obstructions; that there was nothing to prevent those in charge of the train from seeing the perilous position of the plaintiff, and it may be that, if the engineer and fireman were on the lookout, they saw, or by the exercise of reasonable care and diligence might have seen, the perilous position of the plaintiff. No alarm was given. Nothing was done to warn deceased of the approaching train. He evidently was unconscious of its approach.
The only warning that was given him was too late to be of any benefit whatever, as the train was upon him at the time the two short blasts of the whistle were given. "Warning in all such cases" (and Mr. Fuller under the circumstances did not forfeit his right to be warned simply because he went upon the railroad track in front of an approaching train), as was said by the supreme court of the United States in C. I. Co. v. Stead, "must be reasonable and timely, but what is reasonable and timely warning may depend on many circumstances. It cannot be such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be warning of the coming shot, but the velocity of the former generally outstrips the latter." Even if the engineer had not made an effort to stop or check his train, but had contented himself with giving the alarm at the point when he did see, or could have seen by the exercise of reasonable care on his part, the catastrophe in all probability would have been averted.
It must be observed that this is not the case of a pedestrian who approaches or who is on the track. In such cases the engineer has the right ordinarily to act upon the assumption that the party will get out of danger. Mr. Fuller was in a wagon, and the engineer could have seen that he was going to cross the track, and could only with difficulty extricate himself from his perilous position. Everything shown by the evidence may be true, and non constat those in charge of the train may have seen and realized the perilous position of Mr. Fuller in time to have prevented injuring him by the exercise of reasonable care. On this point the evidence is silent, and consequently all the facts and circumstances relating to the injury are not in evidence.
We have discussed this question from the standpoint that Mr. Fuller, who was a licensee, was entitled to no greater rights than if he had been a trespasser. We do not mean to hold that Mr. Fuller under the circumstances, being upon a private road that had been used by the community for a long period of time with full knowledge of the railroad company, was not entitled to demand the exercise of more care and caution than the law demands shall be exercised towards trespassers. This question is pretermitted entirely from the opinion. It may possibly arise later on, when the question will be met and decided.
Reversed and remanded.
MCLAIN, J.
The plaintiffs in the court below brought suit against the railroad company for the killing of their father, Mr. S. A. Fuller.
The facts in evidence are these: . . . Mr. Fuller, on the evening of December 2, 1909, between 5:30 and 6 o'clock p. m., approached and drove upon and undertook to cross the railroad track. He was seated in a one-horse wagon, and the wagon was being drawn by one horse. The evidence is that he was driving slowly; that he neither stopped, looked, nor listened for any approaching train before he got upon the crossing; that he never turned his head either to the right or to the left, but, upon the other hand, was facing the direction in which he was going, almost north. The train which killed Mr. Fuller was about thirty minutes late. It was a passenger train consisting of two passenger coaches, a baggage, and express car and an engine and tender, and was running at a high rate of speed--at a speed greater than it was in the habit of running. At a distance of nine hundred feet from this crossing was the whistling board for Kosciusko. The crossing at which the injury occurred was just outside of the corporate limits of the city of Kosciusko. When the train reached this whistling board, it gave the signal for the station, which was a long blast of the whistle. No other signal or warning whatever was given until just before the collision between the engine and the wagon in which Mr. Fuller was, when two short blasts of the whistle were given, and immediately thereafter the wagon in which Mr. Fuller was driving was struck and the wagon demolished, the pieces scattered for a long distance up the track, and Mr. Fuller was hurled some feet and instantly killed. At the time of the collision the horse had passed over the crossing, and the wagon, that portion of it wherein Mr. Fuller was seated, was in the center of the track. The uncontradicted evidence is that by the proper application of the air brakes and the sanding of the track this train could have been stopped within a distance of two hundred feet. The train was running at the time of the collision from thirty-five to forty miles an hour. There. was no evidence at all that those in charge of the train made any effort whatever either to stop or check the train. The record is absolutely silent as to what those in charge of the train saw or did. Mr. Fuller was an old man, had passed his three score years and ten; and from the evidence it is clear that he was unconscious of his danger, being probably absorbed in other matters. At the close of plaintiff's evidence, the defendant made a motion to exclude from the jury all of the evidence which was sustained, and thereupon a peremptory instruction was given to the jury to find for the defendant, and the jury so found. From this an appeal is prosecuted to this court, and the exclusion of the evidence from the jury and the granting of the peremptory instruction are the errors assigned.
* * *
The rule is settled beyond controversy or doubt, first, that all that is required of the railroad company as against a trespasser is the abstention from wanton or willful injury, or that conduct which is characterized as gross negligence; second, although the injured party may be guilty of contributory negligence, yet this is no defense if the injury were willfully, wantonly, or recklessly done or the party inflicting the injury was guilty of such conduct as to characterize it as gross; and, third, that the contributory negligence of the party injured will not defeat the action if it is shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequence of the injured party's negligence. This last principle is known as the doctrine of the "last clear chance." The origin of this distrain is found in the celebrated case of Davies v. Mann. The plaintiff in that case fettered the front feet of his donkey, and turned him into the public highway to graze. The defendant's wagon, coming down a slight descent at a "smartish" pace, ran against the donkey, and knocked it down, the wheels of the wagon passing over it, and the donkey was killed. In that case Lord Abinger, C. B., says: "The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there. But, even were it otherwise, it would have made no difference, for, as the defendant might by proper care have avoided injuring the animal and did not, he is liable for the consequences of his negligence, though the animal might have been improperly there." While Park, B., says: "Although the ass might have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on the public highway or even a man lying asleep there, or probably running against the carriage going on the wrong side of the road." It is impossible to follow this case through its numerous citations in nearly every jurisdiction subject to Anglo-American jurisprudence. For the present it will be sufficient to say that the principle therein announced has met with practically almost universal favor. It has been severely criticized by some text-writers. The groans, ineffably and mournfully sad, of Davies' dying donkey, have resounded around the earth. The last lingering gaze from the soft, mild eyes of this docile animal, like the last parting sunbeams of the softest day in spring, has appealed to and touched the hearts of men. There has girdled the globe a band of sympathy for Davies' immortal "critter." Its ghost, like Banquo's ghost, will not down at the behest of the people who are charged with inflicting injuries, nor can its groanings be silenced by the rantings and excoriations of carping critics. The law as enunciated in that case has come to stay. The principle has been clearly and accurately stated in 2 Quarterly Law Review, p. 207, as follows: "The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it."
* * *
So far as the point involved in the instant case is concerned, Ensley R. R. Co. v. Chewning is directly in point. The defense in that case was that the plaintiff was guilty of contributory negligence. The court says on this subject: "The court instructed the jury that, 'if the plaintiff himself were negligent or at an improper place when he was struck, yet if the engineer saw his peril in time to stop the train and could have stopped it before the plaintiff was struck and failed to do so, and plaintiff did not know of his danger, then the defendant is liable and the jury should so find.' We have repeatedly held that, when persons in charge of a train discover the perilous position of one on the track though a trespasser, it becomes their duty to use reasonable care to prevent the injury, and the failure to do so is reckless or wanton negligence. This is the proposition of the charge, but defendant insists that there is no evidence tending to show reckless, wanton, or wilful negligence. The insistence is rested on the ground that, 'if the engineer be believed, he did everything in his power to save him, and that his evidence is uncontradicted; on the other hand, if his testimony be disregarded, then there is no evidence tending to show that plaintiff was ever discovered, or that the engineer did not make every effort in his power to prevent the accident. In either event, that the charge was abstract.' Positive, direct evidence as to the time when plaintiff was first seen, and as to the skill and diligence used thereafter to avoid injury, is not indispensable. These facts may be proved by circumstances, and are inferences to be drawn by the jury in applying common observation and experience, to whom the question was submitted." The facts in the instant case show that for a distance of six hundred and sixty feet west of the crossing where Mr. Fuller was run over and injured the track was perfectly straight; that there were no obstructions; that there was nothing to prevent those in charge of the train from seeing the perilous position of the plaintiff, and it may be that, if the engineer and fireman were on the lookout, they saw, or by the exercise of reasonable care and diligence might have seen, the perilous position of the plaintiff. No alarm was given. Nothing was done to warn deceased of the approaching train. He evidently was unconscious of its approach.
The only warning that was given him was too late to be of any benefit whatever, as the train was upon him at the time the two short blasts of the whistle were given. "Warning in all such cases" (and Mr. Fuller under the circumstances did not forfeit his right to be warned simply because he went upon the railroad track in front of an approaching train), as was said by the supreme court of the United States in C. I. Co. v. Stead, "must be reasonable and timely, but what is reasonable and timely warning may depend on many circumstances. It cannot be such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be warning of the coming shot, but the velocity of the former generally outstrips the latter." Even if the engineer had not made an effort to stop or check his train, but had contented himself with giving the alarm at the point when he did see, or could have seen by the exercise of reasonable care on his part, the catastrophe in all probability would have been averted.
It must be observed that this is not the case of a pedestrian who approaches or who is on the track. In such cases the engineer has the right ordinarily to act upon the assumption that the party will get out of danger. Mr. Fuller was in a wagon, and the engineer could have seen that he was going to cross the track, and could only with difficulty extricate himself from his perilous position. Everything shown by the evidence may be true, and non constat those in charge of the train may have seen and realized the perilous position of Mr. Fuller in time to have prevented injuring him by the exercise of reasonable care. On this point the evidence is silent, and consequently all the facts and circumstances relating to the injury are not in evidence.
We have discussed this question from the standpoint that Mr. Fuller, who was a licensee, was entitled to no greater rights than if he had been a trespasser. We do not mean to hold that Mr. Fuller under the circumstances, being upon a private road that had been used by the community for a long period of time with full knowledge of the railroad company, was not entitled to demand the exercise of more care and caution than the law demands shall be exercised towards trespassers. This question is pretermitted entirely from the opinion. It may possibly arise later on, when the question will be met and decided.
Reversed and remanded.