Hubbard v. Southern Ry. Co.

83 So. 247, 120 Miss. 834

• Court: Mississippi Supreme Court
• Decided: October 15, 1919
• Docket: No. 20855
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

Appellant filed suit against the appellee for a personal injury resulting in the loss of one leg, said leg being run over and crushed by one of the engines operated hy appellee. The injury occurred in the town of Iuka, Miss., at night.' The appellant was traveling along the track of the said railroad in an intoxicated condition, and testified that he did not know that the engine was approaching until it was near him, and that then he made an effort to get off the track and fell down, and his leg was run over; that he was approached by the night watchman and told “if he didn’t go home he would be locked up;” that he started down the railroad, which was the way he went home; that he was in the middle of the* track and was just walking along and saw the train coming; he could not say how close the train was to him, and he undertook to get off the track and fell down, and the train ran over him.

The fireman and the engineer testified for the defendant. The engineer said he was operating the engine which ran over Hubbard, and that when he came into town he blew for the station signal and received a “proceed” signal; that the signal was to slow down and not stop;. that an order was handed him, and he was reading the order going from the depot eastward at the rate of from three to four miles an hour, and when he finished reading the order he was in' the act of giving the engine steam, when the fireman hallooed, “We are running into something;” that he did not see the man until the flagman hallooed. The fireman testified that, as the train proceeded from the depot eastward, he was firing the engine and, when he finished, looked upV and saw something bright in the track which attracted his attention, and that on looking he saw the leg of the appellant on the rail and hallooed to the engineer, and the train was stopped- as speedily as possible after discovering the appellant.

After the appellant was injured, the physician of the railway company attended the appellant and amputated his limb on the night of the injury. On the following day the appellant sent for an attorney and filed suit against' the appellee for the said injury. Some days thereafter the claim agent of the appellee visited the appellant and obtained a statement from him as to the injury. Negotiations were opened between - the claim agent and the appellant, and several offers made by the claim agent and rejected by the appellant; but finally, about two weeks after the injury, appellant signed a release in consideration of four hundrd dollars paid him, and dismissed the suit previously, filed. This release was pleaded by the defendant, and the plaintiff replied that the release was fraudulent and void. There was conflict of evidence as to the mental condition of appellant at the time of signing the release, but there is no conflict that he retained the money so paid him, and did not pay or tender it back before bringing the present suit. The last suit was brought August 18, 1917, and the injury occurred on the 13th of June, 1917. The court instructed the jury, among other instructions, as follows:

‘'‘The court instructs the jury for the defendant that, although they believe from the evidence in this case that plaintiff’s mind at the time he made this settlement and signed this release was not sufficiently clear for him to understand the settlement he was making, yet if they further believe from the evidence; that he received the money, and that afterwards his: mind did become clear, and he then learned and knew that he had this money and also knew that it had been paid to him in settement of any claim thát he might have against the defendant for the injury he had suffered, and they further believe he has retained said money, then this is a ratification of said release, and is binding upon plains tiff, in so far as mental incapacity is relied upon to set aside said release.”

The appellant contends that this instruction is in conflict with the law as announced in Jones v. Railway Co., 72 Miss. 22, 16 So. 379; K. C. M. & B. Ry. Co. v. Chiles, 86 Miss. 365, 38 So. 498; and St. Louis, etc., Railway Co. v. Ault, 101 Miss. 341, 58 So. 102. While the appellee contends that this’ question is supported by the case of Railroad v. Turnbull, 71 Miss. 1029, 16 So. 346. The railway company also asked a peremptory instruction which was refused by the court.

We- deem it unnecessary to decide at this time whether or not the instruction above set out is erroneous. Conceding, but not deciding, that it is erroneous, we think it is harmless error, because the plaintiff failed to make out a case of liability. He was a trespasser upon the track of ■ the defendant, and the defendant owed him no duty except not to willfully or wantonly ■injure him after discovering hi§ presence on the track. The testimony is undisputed that the engineer and fireman did all they could to stop the train before the injury after they -saw the plaintiff, but could not do.so. The jury having found for the railway company, which led to the same result as the giving of the peremptory instruction would have led to, and as a peremptory instruction should have been given on the facts of this case, the judgment will be affirmed.

Affirmed.