Christian v. Illinois Central Railroad

71 Miss. 237

Opinion

Cooper, J.,

delivered the opinion of the court.

We will not review particularly the sixteen instructions asked and received by the defendant. Some of them may be correct, but throughout them, as a whole, runs the wholly erroneous proposition that the mere negligent injury of a trespasser by the servants of a railway company is not ground of action by the trespasser. Under the sixth instruction, the jury was, in effect, tqld that the plaintiff could not recover unless the engineer intentionally or purposely ran him down. If that were true, the plaintiff, being a trespasser, must show such injury that, if it had resulted in his death, the servants of the company inflicting the injury would be guilty of murder. By the seventh instruction the jury was told that the plaintiff could not recover unless the conduct -of the defendant’s servants “ was regardless of consequences and without effort to prevent injury.” The true rule is that the servants of the company are not bound to keep a lookout for trespassers, but if they see one, and appreciate his danger, and that he cannot, by the exercise of reasonable effort, extricate himself, then they, in turn, must exercise reasonable care to prevent injury to him; and what is such reasonable care is a question of fact, determinable by the circumstances. Jamison v. Railroad Co., 63 Miss., 33 ; Railroad Co. v. Cooper, 68 Ib., 368; Railroad Co. v. Williams, 69 Ib., 631; Railroad Co. v. Watly, Ib., 145.

Judgment reversed.