The rule is settled beyond controversy or doubt, first, that all that is required of a railroad company as against a trespasser is the abstention from wanton or willful injury, or that conduct which is characterized as gross negligence; second, although the injured party may be guilty of contributory negligence, yet this is no defense if the injury were willfully, wantonly, or recklessly done or the party inflicting the injury was guilty of such conduct as to characterize it as gross; and, third, that the contributory negligence of the party injured will not defeat the action if it is shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequence of the injured party's negligence. This last principle is known as the doctrine of the last clear chance.
The company's train struck the deceased as he was driving his horse-drawn wagon. Due to a dip in the road and a pile of cross-ties, the deceased might have been unaware of the approaching train, but that the train's driver was probably able to see the deceased. The court held that the evidence should not have been excluded. Miss. Code § 1985 (1906) provided that in all damages actions against railroad companies, proof of injury inflicted by the running of a company's train was prima facie evidence of the want of reasonable skill and care. There was no evidence that those in charge of the train did not see the deceased or that exculpated the company. The company did not rebut the § 1985 presumption by application of the last clear chance doctrine.
Is a railroad company liable for an accident for having the last clear chance to avoid a fatal accident?
Our conclusion is that the predicate upon which the principle in Davies v. Mann and the cases following that authority is based is that the defendant's liability is enforced because his negligence is the proximate cause of the injury. If, therefore, we be correct in this deduction, it must necessarily follow that our statute (section 1985 of the Code of 1906) is applicable and applies in cases where there is evidence of what may be termed the plaintiff's contributory negligence, as well in cases where there is no evidence of plaintiff's negligence.
It must be observed that this is not the case of a pedestrian who approaches or who is on the track. In such cases the engineer has the right ordinarily to act upon the assumption that the party will get out of danger. Mr. Fuller was in a wagon, and the engineer could have seen that he was going to cross the track, and could only with difficulty extricate himself from his perilous position. Everything shown by the evidence may be true, and non constat those in charge of the train may have seen and realized the perilous position of Mr. Fuller in time to have prevented injuring him by the exercise of reasonable care. On this point the evidence is silent, and consequently all the facts and circumstances relating to the injury are not in evidence.