Yazoo & Mississippi Valley Railroad v. Farr

48 So. 520, 94 Miss. 557

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Fletcher, J.,

delivered the opinion of the court.

Appellant assigns two reason why the judgment in this case should be reversed. It is said that there is a variance, because the declaration counts upon the negligence of the telegraph operator atr-Harriston, whereas the proof discloses that the accident was attributable to the negligence of the conductor on the northbound train. We cannot yield to this contention. The point is highly technical, and should not operate to reverse the judgment, unless the variance is clearly shown. Here we have no doubt that the operator was gravely delinquent in the discharge of duty. There is no pretense that he delivered the train orders in the way prescribed by the rules of the company. Especially was he derelict in' failing to see that the conductor, in his presence, read his orders aloud; this being a most important regulation, designed to preclude all possibility of mistake. The conduct of the operator in abandoning his post after the wreck without waiting for any investigation is an admission that he was at fault.' If it be conceded that the conductor Was in some degree negligent, still it remains true beyond question that the accident would not have happened, had the operator performed his full duty. We think, the proof, in any practical view of the matter,, conformed to the averments of the declaration.

In the second place, it is insisted that the case should have gone to the jury on the question of contributory negligence. It is shown without .contradiction that the engineer at the time of the collision was at his usual post of duty, keeping a lookout, but that his view was obstructed by the contour of the hill, around which the track curved. It is shown that the fireman, whose position on the left of the locomotive placed him on the inside of the curve, was engaged in his primary duty of coaling his engine. The argument is that the engineer should have left his own position and kept watch from the left side. But, had he done so, it is shown that he could not have stopped his train in time to prevent the accident. He might have jumped from the engine sooner than he did, but the result would probably have been the same. As a matter of fact he seems to have jumped, but with disastrous results. If we concede that he was negligent, that negligence certainly did not contribute proximately to the injury, which was caused alone by the carelessness of the company’s servants other than the unfortunate engineer.

There is no complaint as to the amount of the verdict, nor, indeed, could there be.

Affirmed►