McLain, Ct
This is an appeal by the Illinois Central Railroad Company from the circuit court of Attala county, from a judgment of $5,000' rendered against it, in favor of appellee, Cbmfort, for personal injury suffered by him in the crashing of his foot by defendant railroad company. The only assignment [875]*875of error submitted to the court by appellant is that the defendant below should have had a peremptory instruction as ashed. To have a clear conception of the legal point involved, it is necessary to give some of the leading facts.
From the record it apears that plaintiff was a- young man. about twenty-two years old, and had had some railroad experience. He had been employed by the railroad company as fireman, and he quit this position and sought the one of flagman. On November 4, 1909, he was employed as a flagman on a gravel train of defendant, and on this very day this deplorable accident occurred. This gravel train on that day was unloading gravel at a point three miles south of West, Miss., and about a half mile north of a flag station, known as Hoffman. The unloading was-done by means of a drop- door from the bottom of the car, the-gravel falling 'out upon the ends of the cross-ties, and it appears-that it was then leveled off by means of a common cross-tie being-placed in front of the rear wheels and then pulled over the gravel.. By this means the gravel was practically leveled, but at each end of this tie, on either side of the roadbed, much of the gravel was-forced in such manner as to leave a continuous row of gravel at the ends of the ties. This was the condition of the roadbed at the point where the tragedy occurred. At this point the roadbed was on an embankment about fifteen feet high, sloping-on either side down fo the level ground. Where this occurred was on a part of an embankment extending across a bottom for a distance of about two miles.
The conductor of the gravel train ordered the plaintiff to go-north and flag down a south-bound train then due. After going north about one-half mile, he saw the freight train approaching from the north, and when it was. in about one-quarter of a mile of him he signaled it to- stop. The engineer blew two blasts upon his whistle, indicating to the flagman that he saw the signal' and would stop, in obedience to and in conformity to a rule of the company, which says: “Enginemen must respond promptly [876]*876and make answer to signals, and must not pass the flagman until they ascertain the reason for being flagged. They must be alert in all matters pertaining to the protection of their train, and when it becomes evident to them that their rear protection will be required, they must immediately whistle out the flagman and repeat the signal until protection is assured.” Plaintiff then stepped to the west side of track, getting upon the row of gravel which lay at the end of the cross-ties, which row of gravel was about twenty or twenty-four inches high. The roadbed at this point was about fifteen feet wide, and the cross-beam of engine approaching was ten feet in -length, thus placing the plaintiff in line with, or in very close proximity to, the path of the movement or sweep of the train. At this point the railroad was perfectly straight several miles north and for some distance- south.
Counsel in his brief says: “We wish to call the attention of the court to the fact that we base the negligence of the engineer in charge of the approaching freight train upon two theories: Pirst, that he was negligent in disregarding the rule; second, that the appellee’s position of peril was well known to him, and, not being a fellow servant of the appellee, the railroad company is liable for his- negligence in running down upon the appellee in his perilous condition.” Plaintiff takes the ground that the obvious purpose of the rule, above quoted, was to require the engineer to stop his engine before he reached the flagman, in order that he might ascertain the purpose of being stopped. He seeks to excuse and justify his conduct, and to fix liability upon the defendant, on the ground that from this rule he had a right to assume, and did assume, that the train would stop before it got to him. Therefore, in the absence of any knowledge to- the contrary, it was an assurance, on which he was justified in relying that -it would stop before it reached him, and that he had a right to stand where he did.
We will first inquire: Did the engineer disregard the rule? ■On this point the engineer says: “Q. Well, then, your train was running from its own momentum ? A. Yes, sir; it was slightly [877]*877down bill. ■ Q. You put on your brakes? A. Yes, sir. Q. What did you put them on full for ? A. I was figuring on stopping near tbe flag — you see we have no special rule to stop- exactly. Q. You know you ran over your signal ? A. No, sir. Q. As a matter of fact ? A. No, sir. Q. You are well aware of the fact that if you run tbis train over orders, you would be discharged from Service? A. Yes, sir. Q. Over signals? A. Yes, sir. Q. You are conscious of that fact tvhen you are testifying here, are you ? If it is proven that you ran over tbe signals and cut that fellow’s foot off, you would be discharged from service? A. No sir; because I did not run over a signal.” It is further in evidence that the freight train and its appliances were in good order, that the engineer was competent and diligent, and that tbe train on the occasion in question was carefully handled. It is further shown that the train was composed of an engine a-tender, and thirty-two cars and that the only part of the train that passed the spot where the flagman was standing was the engine, the tender, and three or four of the cars of tbe train. Counting the engine as a car, and the tender.as a car, there were thirty-four cars in the train. According to tbe plaintiff’s own showing, the engine, the tender, and three cars passed the spot where he was standing. From this we see the train* was stopped when only -about one-sixth of its length had gone by tbe place where the flagman was standing, and about five-sixths of it was still north of him. We think these facts show that tbe engineer did substantially comply with tbe above-mentioned rule. We think tbis construction gives it a practical and common-sense interpretation. To give it tbe construction that the plaintiff seeks to place upon it would be to give it a strained and unreasonable one.
We will next inquire: Was the plaintiff guilty, under the circumstances which the evidence discloses, of contributory negligence? The plaintiff contends “that his position of peril was well known to the engineer of the freight train, and, not being [878]*878a fellow servant of the appellee, the railroad company is liable for his negligence for running dotvn upon the appellee in his perilous,condition.” We will first give the plaintiff’s own version of this affair. We will first note that, as the south-bound train approached, the signal being ansAvered, as plaintiff puts it, plaintiff then stood to one side of the track, on top of the row of •gravel deposited there, and about two and one-half feet to the west of the track, he facing north. Plaintiff, when on the stand said: “It came by me about twelve miles an hour, and as it approached me there I turned my back west and faced east, with my right foot in front of my left one, standing on the gravel, and the front of the engine run by me so fast that I Avent to get out ■of the Avay, and the gravel gave Avay under' me, and I fell under the tender. Q. You wanted to get back where ? A. Get out of the way, to keep the train from hitting me. Q. How came you so close to that — -the rails up there ? A.
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McLain, Ct
This is an appeal by the Illinois Central Railroad Company from the circuit court of Attala county, from a judgment of $5,000' rendered against it, in favor of appellee, Cbmfort, for personal injury suffered by him in the crashing of his foot by defendant railroad company. The only assignment [875]*875of error submitted to the court by appellant is that the defendant below should have had a peremptory instruction as ashed. To have a clear conception of the legal point involved, it is necessary to give some of the leading facts.
From the record it apears that plaintiff was a- young man. about twenty-two years old, and had had some railroad experience. He had been employed by the railroad company as fireman, and he quit this position and sought the one of flagman. On November 4, 1909, he was employed as a flagman on a gravel train of defendant, and on this very day this deplorable accident occurred. This gravel train on that day was unloading gravel at a point three miles south of West, Miss., and about a half mile north of a flag station, known as Hoffman. The unloading was-done by means of a drop- door from the bottom of the car, the-gravel falling 'out upon the ends of the cross-ties, and it appears-that it was then leveled off by means of a common cross-tie being-placed in front of the rear wheels and then pulled over the gravel.. By this means the gravel was practically leveled, but at each end of this tie, on either side of the roadbed, much of the gravel was-forced in such manner as to leave a continuous row of gravel at the ends of the ties. This was the condition of the roadbed at the point where the tragedy occurred. At this point the roadbed was on an embankment about fifteen feet high, sloping-on either side down fo the level ground. Where this occurred was on a part of an embankment extending across a bottom for a distance of about two miles.
The conductor of the gravel train ordered the plaintiff to go-north and flag down a south-bound train then due. After going north about one-half mile, he saw the freight train approaching from the north, and when it was. in about one-quarter of a mile of him he signaled it to- stop. The engineer blew two blasts upon his whistle, indicating to the flagman that he saw the signal' and would stop, in obedience to and in conformity to a rule of the company, which says: “Enginemen must respond promptly [876]*876and make answer to signals, and must not pass the flagman until they ascertain the reason for being flagged. They must be alert in all matters pertaining to the protection of their train, and when it becomes evident to them that their rear protection will be required, they must immediately whistle out the flagman and repeat the signal until protection is assured.” Plaintiff then stepped to the west side of track, getting upon the row of gravel which lay at the end of the cross-ties, which row of gravel was about twenty or twenty-four inches high. The roadbed at this point was about fifteen feet wide, and the cross-beam of engine approaching was ten feet in -length, thus placing the plaintiff in line with, or in very close proximity to, the path of the movement or sweep of the train. At this point the railroad was perfectly straight several miles north and for some distance- south.
Counsel in his brief says: “We wish to call the attention of the court to the fact that we base the negligence of the engineer in charge of the approaching freight train upon two theories: Pirst, that he was negligent in disregarding the rule; second, that the appellee’s position of peril was well known to him, and, not being a fellow servant of the appellee, the railroad company is liable for his- negligence in running down upon the appellee in his perilous condition.” Plaintiff takes the ground that the obvious purpose of the rule, above quoted, was to require the engineer to stop his engine before he reached the flagman, in order that he might ascertain the purpose of being stopped. He seeks to excuse and justify his conduct, and to fix liability upon the defendant, on the ground that from this rule he had a right to assume, and did assume, that the train would stop before it got to him. Therefore, in the absence of any knowledge to- the contrary, it was an assurance, on which he was justified in relying that -it would stop before it reached him, and that he had a right to stand where he did.
We will first inquire: Did the engineer disregard the rule? ■On this point the engineer says: “Q. Well, then, your train was running from its own momentum ? A. Yes, sir; it was slightly [877]*877down bill. ■ Q. You put on your brakes? A. Yes, sir. Q. What did you put them on full for ? A. I was figuring on stopping near tbe flag — you see we have no special rule to stop- exactly. Q. You know you ran over your signal ? A. No, sir. Q. As a matter of fact ? A. No, sir. Q. You are well aware of the fact that if you run tbis train over orders, you would be discharged from Service? A. Yes, sir. Q. Over signals? A. Yes, sir. Q. You are conscious of that fact tvhen you are testifying here, are you ? If it is proven that you ran over tbe signals and cut that fellow’s foot off, you would be discharged from service? A. No sir; because I did not run over a signal.” It is further in evidence that the freight train and its appliances were in good order, that the engineer was competent and diligent, and that tbe train on the occasion in question was carefully handled. It is further shown that the train was composed of an engine a-tender, and thirty-two cars and that the only part of the train that passed the spot where the flagman was standing was the engine, the tender, and three or four of the cars of tbe train. Counting the engine as a car, and the tender.as a car, there were thirty-four cars in the train. According to tbe plaintiff’s own showing, the engine, the tender, and three cars passed the spot where he was standing. From this we see the train* was stopped when only -about one-sixth of its length had gone by tbe place where the flagman was standing, and about five-sixths of it was still north of him. We think these facts show that tbe engineer did substantially comply with tbe above-mentioned rule. We think tbis construction gives it a practical and common-sense interpretation. To give it tbe construction that the plaintiff seeks to place upon it would be to give it a strained and unreasonable one.
We will next inquire: Was the plaintiff guilty, under the circumstances which the evidence discloses, of contributory negligence? The plaintiff contends “that his position of peril was well known to the engineer of the freight train, and, not being [878]*878a fellow servant of the appellee, the railroad company is liable for his negligence for running dotvn upon the appellee in his perilous,condition.” We will first give the plaintiff’s own version of this affair. We will first note that, as the south-bound train approached, the signal being ansAvered, as plaintiff puts it, plaintiff then stood to one side of the track, on top of the row of •gravel deposited there, and about two and one-half feet to the west of the track, he facing north. Plaintiff, when on the stand said: “It came by me about twelve miles an hour, and as it approached me there I turned my back west and faced east, with my right foot in front of my left one, standing on the gravel, and the front of the engine run by me so fast that I Avent to get out ■of the Avay, and the gravel gave Avay under' me, and I fell under the tender. Q. You wanted to get back where ? A. Get out of the way, to keep the train from hitting me. Q. How came you so close to that — -the rails up there ? A. I had to stand there to give the orders to the engineer. There Avas no other place to stand, unless I got doAvn the embankment.” In another portion of the record he said, in reference to the train as it approached him: “Q. Now, in looking at that train, as I understand it, you were near about the front of it. Is that true? A. Yes, sir. 'Q. Gould you tell horv rapidly it Avas coming to you until it got to you? A. No, sir; it looked like it Avas sort of down grade, and it was coming doAvn grade. Q. Now, you expected it to stop, as you say? A. Yes, sir. Q. And when it got right at you, you made a struggle to get out of the Avay? A. Yes, sir. Q. And your right foot fell on the track, you say ? A. Yes, sir.”
Assuming that the plaintiff did believe that, under the rules •of the company, the freight train Avas going to' stop before it reached him, that did not absolve him from the duty of exercising prudence, care, and common sense. The train Avas running at the rate of twelve miles an hour, so he says. By the use of his faculties, he ought to' have knoAvn from the speed of the train that it could not stop before it reached the place where he [879]*879was standing, and he should have, knowing the perilous position which he was in, taken steps earlier than he did to. get back from the path of the train. Under the facts and circumstances in the case, the engineer had a right to assume that plaintiff would move out of the sweep or path of the approaching train.
We cannot resist the conclusion that the deplorable, accident which befell the plaintiff was attributable to his own lack of caution, and was not due to the negligence of the defendant.
Per Ourlam.
For the reasons set forth in the above opinion by the commissioner, the judgment is reversed and cause re-, manded. •