Illinois Central Railroad v. Brown

77 Miss. 338

• Court: Mississippi Supreme Court
• Decided: December 15, 1899
• Status: Published

Opinion

Woods, O. J".;

delivered the opinion of the court.

It is altogether certain that the appellee, at the time of receiving his injuries, was where he should not have been, and where his own evidence clearly shows he knew that he should not have been. His proper place was inside of the caboose, as he well knew, and he was guilty of contributory negligence in the act of which he complains, and this would and should usually bar his recovery.

In the present case, however, the evidence discloses such gross negligence on the part of the servants of the appellant as to render the contributory negligence of appellee unavailing to prevent a recovery. That the method of handling the car on which the appellant was improperly riding, as a part of the segment of the train of cars detached from the engine and forward cars in the train, was so obviously dangerous as to justify its characterization as grossly negligent, wilful, reckless negligence.

That a number of cars set out on a switch track having a down grade, without brakes applied, or any other means adopted to prevent their rolling down the incline, w'ould necessarily roll down and come in collision with a train moving down, also, on the main line in the direction which the set-out cars were bound to take, was palpable to the dullest comprehension. That the train on the main line moving south and the detached and unsecured cars on the switch track with a down grade south must come together, was apparent to anyone, and only gross negligence — recklessness or wilful blindness to the peril — would have invited the inevitable catastrophe.

Contributory negligence must continue to defeat a recovery where the railroad has been guilty of mere negligence; but where, as in this case, the negligence of the railroad’s servants is marked by gross or wilful or reckless misconduct, the contributory negligence of the complaining party should not be permitted to shield the railroad from liability for such misconduct.

Affirmed.