I dissent from that part of the opinion reversing the case. I think the fifth count stated the cause of action, and that the proof was sufficient to submit to the jury the question as to whether due warning was given of the approach of the train, and whether, after seeing the dangerous situation of the appellee, the company could, by exercising reasonable diligence, have stopped the train in time to prevent the injury. *Page 142
In 22 R.C.L., p. 921, section 167, it is said:
"It is the duty of a railroad company at a station where its tracks are in constant use by the public to keep a lookout, to run at a reasonable speed, and to give timely warning of the approach of engines or trains, but it is not required so to operate its trains at stations as to stop them in case of necessity before injury to persons crossing the track. It is required to exercise only ordinary care at such places."
In the same volume, page 951, section 191, it is said:
"A railroad company does not owe to a mere trespasser upon its track the duty when not aware of his presence of giving cautionary signals, to notify him of the approach of its trains, provided it exercises ordinary care after seeing him. And the failure to give signals elsewhere than at public places, or at public crossings, does not constitute negligence as to those who, as trespassers, may be crossing or using the track. When, however, those in charge of a moving train see a person walking on the track, a due regard for human life, and due precaution against unnecessary injury, require the usual signals of warning to be given. . . . It is clearly the duty of a railroad company at common law to give notice of the approach of trains at all points of known or reasonably apprehended danger. And failure to do so will render the company liable where such failure was the proximate cause of injury to one not guilty of contributory negligence."
See, also, Fla. Cent., etc., R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338, 79 Am. St. Rep. 149; Louisville, etc., R. Co. v.McNary, 128 Ky. 408, 108 S.W. 898, 17 L.R.A. (N.S.) 224, 129 Am. St. Rep. 308; Morrow v. So. R. Co., 147 N.C. 623,61 S.E. 621, 16 L.R.A. (N.S.) 642.
In 23 Am. Eng. Ency. L., p. 732, it is said in regard to injury to persons on a near track:
"The liability of a railroad company for injuries sustained by a person on or near its tracks, from some act *Page 143 or omission alleged to constitute negligence, depends upon the legal duty of a railroad company in respect to the person injured. If there is no duty there is no negligence. Even if the company owes a duty to some one else, the failure to perform it does not create a liability to a person injured by such nonperformance if the duty was not one which the company owed to him. The measure of diligence, therefore, due by a railroad company to any person is a relative one, and what is or is not due diligence must be arrived at in every case with reference to the surrounding circumstances, and the relation which for the time being the company and the person occupied in respect to each other."
In the same volume, page 739, under head "Persons Loading or Unloading Cars," it is said:
"A person rightfully engaged in loading or unloading goods from a freight car is upon the railroad company's premises by its implied invitation, and the company owes to him the duty of exercising ordinary care. The fact that no agent of the company pointed out the car or knew that it was being loaded or unloaded at the time is immaterial if the car had been placed upon the side track for that purpose and the person injured was at that time rightfully engaged in the work."
In this case the plaintiff was unloading freight at a team track, placed there by the railroad for the use of persons, and for the convenience of the railroad company in unloading and removing freight from the cars. This car, and the plaintiff's position with reference to it, were in the line of vision, and certainly could have been seen had the persons in charge of the train been keeping proper lookout, and, had they exercised reasonable care after seeing the position of the plaintiff and the fright of his team, could have stopped the train prior to the injury.
At common law the duty of a carrier, under such circumstances, was the rule of reason; that is, what a person *Page 144 of ordinary reason and prudence would do under the circumstances. Where a station and team track and other facilities for accommodation and for the business of the railroad company exist, the company's servants, in approaching such a place, ought to be attentive to the situation, and keep a proper lookout, and do whatever is reasonable under the circumstances.
The statute referred to in the opinion was not designed to abolish the common law, but was designed for the special protection of persons at a crossing. Since we have enacted numerous statutes regulating the operation of railroads, the common law is about to be forgotten in reference to the duties imposed by the rule of reason and prudence. See, also, the authorities collected in volume 3 of Mississippi Dig. Ann. on Railroads, p. 619, section 419.
If these views are correct, then the instructions refused to appellant, set out in the majority opinion, do not constitute error. Consequently, the judgment should be affirmed.