Judgment may be rendered according to rights of parties. Section 752, Ann. Code 1892; Code 1906, § 813 (brought forward).

From the foregoing, the court will see that under the circumstances there was no error in consolidating the two suits. Moreover, the court will note that the jury acted under proper instruction, and the counsel for parties agreed, as shown in the judgment (page 63), that the verdict might be put in form and the meaning of the jury ascertained by the circuit court, "and this being by consent done, and the jury having declared that the sum assessed was to cover all damages to the parties lawfully entitled to it, the verdict was so framed accordingly." Now, since "damages recovered shall not be subject to payment of liabilities or debts of deceased," and both declarations claimed damages for the wife and children, the verdict under elther declaration to be for an amount (if successful against defendant) to be turned over to the widow and children, how can there have been any prejudice to defendant? If it could be shown that the railroad company was in any way prejudiced by the consolidation of the two suits, the case might be different. But it is self-evident that the railroad company knew that the issue to be met was the question of its liability for the death of Mr. Hicks. It is evident that in many cases a consolidation of suits might for the time being raise questions in the mind of the defendant as to what issues would be presented on the trial. But here it is so manifestly evident that no prejudice resulted to the appellant that this court will not notice this assignment of error.

The brief of our associates has thoroughly covered the questions presented by the Constitution and by the act of 1898, and authorities have been given there to show our contention that, if necessary, this court will again announce its disapproval of the case of Railroad Co. v. Hunter. Hence we do not touch upon this point in this brief.

Under the wording of the declaration, and under the evidence shown in the record, we think that this case will be affirmed for the evident reason that the excessive speed of the heavy freight train was the cause of the death. We speak of this, not as the negligence alone of the engineer. It was the negligence of the company. If it be, as shown in the evidence without dispute, that the railroad company itself has found it advisable to limit its schedule for freight trains to 15 miles an hour, or thereabouts, and subsequently the train is allowed to run at a rate of speed of over 30 miles an hour, it speaks for itself that the master has placed a servant in the responsible position who is incompetent. When we find that the disinterested witnesses were becoming alarmed by the excessively rapid rate of speed, and that just immediately before the accident some of them had arisen from their seats in apprehension

of coming danger, when we find that the car was rocking as the train sped downgrade, it is self-evident that, even if the track had been absolutely safe of itself for careful travel, injury must nevertheless have resulted, for the simple reason that, no matter how good the track there must be a time in the increase of speed when the margin of safety is passed. Running a train at the rate of 10 miles an hour on a good track is not dangerous. Running a train at the rate of 150 miles an hour is dangerous, and for the railroad company in this case to run the first train which carried passengers over its track at a rate which few passenger trains in the whole state equal was manifestly so dangerous that there will be no question in the minds of this court, as there was no question in the minds of the jury, concerning the cause of the injury.

Opposing counsel contend that under the Heflin Case, which explains the class of servants to whom section 193 of the Constitution is applicable, no recovery can be had, because they say Mr. Hicks was not within this class. According to their contention it must be determined that only the engineer, the fireman, conductor, and brakeman, and possibly flagman on the moving train, can take advantage of the beneficial results of section 193. We know this court will not hold this. We agree with opposing counsel that the peril of a class, and not the peril of one individual person, is what must determine. But the deceased belonged to a class which was and is in as much peril as those upon the running train habitually. There is as much danger to the person habitually around the tracks of a railway system as there is to the person who is upon the train. In fact, judging from the cases which come before this court, more injuries and deaths result from persons upon the track than from persons upon the train. The dead man in this case was in a business which required him to be constantly upon the tracks, where numerous trains were passing every day. When he stood by the side of the track, it was within his province to do so just as much as it was within his province to work upon the tracks when the train had passed. He was not required under the law to do more than step aside when the train should pass. Is it not evident to this court that the danger to employés by the side of the tracks from the escaping of steam as the train passes, from the falling of box car doors, from the jolting of coal from the tender, or careless throwing of objects by employés in this department of labor, make the position of the person upon the ground whose duty calls him to work upon the track as much in danger, or habitually in peril, as the engineer or fireman? This is not the case of the hostler in the roundhouse, which is connected with the main line of track by one spur or switch seldom used. It is not the

case of a telegraph operator, who, while an employé of the company, spends his time of work in the second story of the depot building. It is the case of a man who is called by the company to be right in the very atmosphere of smoke from the passing trainsright where trains habitually pass him at a distance of a few feet. It is self-evident that he was in the limited class mentioned by the Chief Justice.

WHITFIELD, C. J. On October 28, 1905, Ray Hicks, a section foreman on appellant's railroad, was working with his crew at a point about two or three miles north of Decatur Junction, in Newton county. The crew had stopped for dinner, but were still on the track and near it, when a mixed passenger and freight train approached. Immediately behind the locomotive were several freight cars, and a passenger coach was on the back end of the train. The train was going north. Hicks and his crew were walking in the same direction; Hicks being further north than the rest of the crew, and on the east side of the track. He had stepped off a few feet as the train approached. About the fourth car from the locomotive, when it was at a point about 280 feet from Hicks, left the track, and about four other cars were then derailed; two of them falling on the west side of the track, and three on the east side, on which Mr. Hicks was. The last derailed car seems to have remained on the cross-ties until it reached a point nearly opposite where Hicks was standing, and it then turned over, falling on Hicks and inflicting injuries from which he died in about three days. There were a passenger coach and a caboose in the train; the passenger coach being at the rear end, and the caboose immediately in front of the coach. These two cars were filled with passengers on their way to a Baptist Association at Philadelphia, in Neshoba county. The coach and the caboose did not leave the track, and the passengers were unhurt.

It is shown by the testimony that the schedule fixed by this railroad, for its freight trains, was 15 miles an hour; that it was a new road, and not ballasted, and hence necessarily rough; that this was the first train ever run over this road carrying passengers, and that the speed at which this first train was actually run was 30 to 40 miles an hour; that the passengers were very much alarmed at the excessive rate of speed, and were in great concern about it, just before the derailment occurred. We think the testimony shows, with sufficient clearness, that this injury was due to the incompetency of the engineer, which would make the master itself liable, and the excessive rate of speed of this first passenger train over this new, unballasted, and rough road. There can be no reasonable controversy as to the injury being due to these two causes. The incompetency of the engineer is manifested by the very

nature of the occurrence. "Res ipsa loquitur" fits in perfectly as showing his gross incompetency. Hicks was a young man about 28 years of age, in good health, industrious, and of good habits. He left a widow, 27 years old, and four children, from 2 to 8 years of age. The jury returned a verdict for the plaintiff for $7,500, and it is from this judgment that this appeal is prosecuted.

Two suits were filed-one by Mrs. Hicks as administratrix, and another by the widow and children. The administratrix bases her claim upon the allegation that the wreck was caused by the negligence of the engineer in charge of the locomotive running the train at an excessive rate of speed, and on the further fact that the said engineer carelessly, grossly, and recklessly, while the train was running at this dangerous and rapid rate of speed, suddenly checked the speed of the locomotive. This declaration sets out Hicks' earning capacity at $100 per month, and that he was the sole support of his widow and children, and that he lingered for several days before he died in great agony. The declaration claimed $30,000 damages, and it is manifestly bottomed on section 193 of the Constitution of 1890. The second declaration, by Mrs. Hicks for herself and her children, proceeds upon the theory of the negligence of the defendant company in knowingly employing an inexperienced, unskillful, and reckless engineer, as the result of which the train was run at the excessive rate of speed, in view of the condition of the track; and, second, upon the negligence of the engineer, in that he suddenly and wantonly attempted to check the train, and upon the negligence of the defendant company in having improper and defective appliances, trucks of an improper gauge, so that the wheels did not properly fit the tracks, and flanges on the wheels of the first box car which jumped the track which were worn, defective, and unsafe, and in not having good and sufficient brakes and brake shoes on the car which first jumped the track, so that its speed could be controlled, and in not having said car properly equipped with air brakes, etc. This declaration also claims $30,000 damages, and is bottomed, manifestly, on section 3559 of the Code of 1892, which is a rescript of section 193 of the Constitution of 1890, and on chapter 65, p. 82, of the Laws of 1898, as explained later herein. We may say at once, and so dismiss this matter, that the cause on the testimony is bottomed chiefly, if not exclusively, upon the negligence of the master in having in its employ a thoroughly incompetent and reckless engineer. and upon the willful and reckless conduct of this engineer in running this first passenger coach over this new, rough unballasted road at this excessive rate of speed.

The learned counsel for the appellant set up six defenses, in briefs which we have never seen surpassed, either in ingenuity or profound ability, and which we direct the reporter to set out, together with the very able

briefs of learned counsel for appellees, in full, in order that railroad attorneys having cases of like kind hereafter may first read these briefs and know whether they should trouble this court with the suits of that sort which they may have in hand. There ought not to be repeated suits brought to this court by appeal bottomed on the same grounds. Once we have determined a cause, the principles in that cause settled ought to be decisive of all other causes of like nature; and it is because of the exceeding ability and the extreme thoroughness of the briefs of the learned counsel for the appellant, which present, it seems to us, every possible phase that could be given to a case like this, that we thus direct their full publication for the guidance of railroad counsel, and other counsel, in the future, where similar cases arise.

Taking up these defenses in the order in which they are presented, the first is that the injury was an accident, pure and simple. We cannot accept this view. There is nothing improbable, or which might not reasonably be foreseen as logically likely to happen, in the connection between negligence, such as here shown, and derailment. It is true that the railroad company could not possibly foresee what particular person might be hurt, or in what particular manner he might be hurt; but that is not determinative. The question is: Ought not the company reasonably to have foreseen that sending its first mixed passenger and freight train over this new, rough, unballasted road at a rate of speed nearly three times its schedule rate would necessarily result in derailment, or at least would most probably so result? It is said in 21 Am. & Eng. Ency. of Law, at page 487, that: "In order, however, that a party may be liable in negligence, it is not necessary that he should have contemplated, or even been able to anticipate, the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected." See, also, Wharton's Law of Negligence (2d Ed.) § 77, and Payne v. Georgetown Lbr. Co., 117 La. 983, 42 South. 475. The section foreman and all his crew are constantly near the tracks, working on them, repairing them, and looking after them in every way. These section crews are always at work on the track, or so near it that they are liable to be injured by the constantly passing trains at all hours of the day, and it would be a dangerous doctrine, indeed, to establish that persons thus situated, when injured by a passing train, are injured as the result of accident, pure and simple.

The second contention of learned counsel for appellant is because no evidence was offered in support of any allegation upon which the claims are based, except the one to the

effect that the engineer was running at a dangerous rate of speed, and section 3559 of the Code of 1892, under which the suit by the administratrix was brought, is violative of the Fourteenth amendment to the federal Constitution. Our first observation with respect to his contention is that it incorrectly states the facts in this: That this action by the administratrix is necessarily bottomed, not only on the negligence of the engineer in running at an excessively dangerous rate of speed, wantonly and willfully, but, as a necessary corollary of this, upon the negligence of the master in having in its employ this utterly incompetent engineer. We do not deem it necessary to say more than we have heretofore held in Ballard v. Cotton Oil Co., 81 Miss. 507, 34 South. 533, 62 L. R. A. 467, 95 Am. St. Rep. 476, and in other cases since, to show that the Fourteenth amendment to the federal Constitution is not in any way violated by section 3559 of the Annotated Code of 1892, which was enacted with reference to railroad corporations, grounding liability in this class of causes on the inherently dangerous nature of their business in operating cars by the highly dangerous agency of steam. On the contrary, we follow the United States Supreme Court in repeated decisions, pointed out in the case of Ballard v. Cotton Oil Co., in maintaining the constitutionality of this statute relating to railroad corporations. We refer to that case, and the cases since, and with that dismiss this contention. It is certainly unnecessary to repeat what we have once so thoroughly and at such great length pointed out.

The third contention of learned counsel for the appellant is that "it plainly appears that the deceased did not belong to that class of employés for whose benefit section 3559 of the Annotated Code of 1892 and section 193 of the state Constitution of 1890 were made." Ingenuity and ability have both been exhausted in the effort to maintain this contention; but a close and careful analysis shows clearly that it is artificial and unsound. Perhaps the best answer of all to this contention that Hicks did not belong to a class of employés, the nature of whose employment exposed them to the inherent perils attending the opration of railroad trains, is the fact that he was killed by one of the cars composing the train. "Res ipsa loquitur" again suffices. It is useless to say that Hicks was exposed to no such peril, in the light of the fact that it was just such a peril which resulted in inflicting upon him death. He was killed by the running of the train. Really, the argument is not accurately stated in saying that he was not exposed at all to such peril; but it is exactly, that the peril was so remote, the danger so unusual, that the consequences to be apprehended from the peril could not readily be foreseen. This is the true gist of the argument presented by the learned counsel for the appellant, reduced to its genuine

analysis. And, thus viewed, it is manifest that there really is no question of the construction of section 193 of the Constitution involved, but a mere question arising under the ordinary general law of negligence, and we have already fully covered this in what we have above said. We may add to this the further statement that the verdict may be properly referred to the general presumption of negligence created by section 1985 of the Code of 1906, which is as follows: "Injury to Persons or Property by Railroads Prima Facie Evidence of Want of Skill, etc. In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of the locomotives, or cars of such company, shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to passengers and employés of railroad companies." The last clause of this section is an amendment of the previously existing law. In other words, Hicks was plainly one of the class of employés, under section 193, exposed, from the nature of his employment, to the perils attending the inherent danger of operating railroad cars. Whilst, at the same time, the verdict here is maintainable under the presumption created by this statute, it is very true, as counsel for appellant say, that it is not instances which are to be classified, but employments. Section 193 of the Constitution, nevertheless, protects the injured employé, not against what he himself is doing, but against what his coemployés of certain kinds are doing. The inquiry is not whether he is at the time operating a train, and thus exposing other employés to a peril, but whether, in the discharge of his duty, he is where the negligence of certain coemployés operating the train may injure him. This is the construction we have given to section 193 in the recent case of Bradford Construction Co. v. Heflin, 88 Miss. 362, 42 South. 174, and this construction is in harmony with the Supreme Courts in the states of Iowa, Kansas, Minnesota, and Missouri construing their employer's liability statutes. In the case of Haden v. Sioux City, etc., Ry. Co., 92 Iowa, 227, 60 N. W. 537, the court said: "It is true that plaintiff was not engaged in the operation of trains in the sense of being an employé on a train; but his work was along and on a track on which trains were operated, and had especial reference to train movements in the way of keeping the track in repair and in condition therefor. His work was of the hazardous kind contemplated by the statute." See, particularly, the note to Jemming v. Great Northern Ry. Co., 96 Minn. 302, 104 N. W. 1079, 1 L. R. A. (N. S.) 696. It was held in Croll v. Atchison, etc., Ry. Co., 57 Kan. 548, 46 Pac. 976, that an employé was, within their statute, one who, while working on a ditch along the track, was struck by a piece of coal from

the tender of a passing engine. In another case, to which we make special reference (Keatley v. I. C. R. R. Co., 94 Iowa, 685, 63 N. W. 560), it was held that an employé, standing on a derrick platform used in building a side wall, and killed by the wrecking of a train crossing an uncompleted bridge, was within the protection of the statute in that state. The decedent was a mere water boy, having nothing to do in the operation of the road, or in the building or repairing of the track. Yet he was exposed to the peril from derailment. See Keatley v. I. C. R. R., 103 Iowa, 283, 72 N. W. 545, and the other cases cited in the brief of learned counsel for the appellee. It may be remarked here that there is no contention, since there could be none, that Hicks was not in a different department of labor from that in which the crew of the passing train was.

The fifth contention of the learned counsel for the appellant is that the court gave an instruction for the plaintiffs and denied an instruction for the defendant upon the theory that the plaintiffs were entitled to the benefit of the presumption created by section 1808 of the Annotated Code of 1892, which is section 1985 of the Code of 1906. We have had this section set out before in this opinion, and refer to it again here. It is perfectly obvious that the amendment to this section was intended, both by the commissioners, in the form in which they expressed it in the dummy code, and by the Legislature, in the somewhat different form in which they expressed it in the last clause of the section, to utterly abrogate the construction by this court of said section, as it appeared in section 1808 of the Annotated Code of 1892, in the Trotter Case, 60 Miss. 442, the Short Case, 69 Miss. 848, 13 South. 826, and the Humphries Case, 83 Miss. 721, 36 South. 154. That erroneous construction of the statute, as it originally existed in the form of section 1808 of the Code of 1892, has been, by this legislative amendment, utterly abrogated. The Legislature was manifestly dissatisfied with the limitation ingrafted upon the plain language of section 1808 by this court in the cases named, and determined to frame a new amendment, which could not be pared away. The Code commissioners in the dummy code had amended the section (section 1808 of the Annotated Code of 1892) so as to make this presumption attach in favor of all standing in "contract relations" to the railroad. The Legislature made an immaterial change, and extended said presumption to passengers and employés. It is perfectly idle, in the face of this plain declaration of the Legisla ture, to argue any further that employés and passengers are not to be given the benefit of this presumption. It is clear, however, in any possible view, that this particular employé, Hicks, was engaged in a different department of service from the employés on the train who caused his injury; not a fellow

servant at all, and hence we think, under section 193 of the Constitution, he is clearly within the reason and spirit of this presumption, and entitled to its benefit, whatever may be the true construction, generally, of this section. So that in no event could the benefit of this presumption on the facts of this case be denied to this employé, Hicks, such as he was, and situated as he was, and injured under the circumstances under which he was injured.

The strongest argument made by the learned counsel for the appellant against allowing this section to extend the benefit of this presumption to all employés is that it might, in certain peculiar cases, result in extending the presumption to cases where the negligence presumed might be that of a fellow servant. This is not a sound construction of this statute. It would impute to the Legislature absolute folly to give it this construction, and this we must never do, if it can possibly be avoided. If the purpose of this amendment was to raise, in favor of an injured employé, the presumption that the negligence was the negligence of a fellow servant, this would result, instantly, in no liability; and if this purpose is attributed to the Legislature it would be convicted of the absurdity of creating a presumption of nonliability in the effort to create a presumption of liability. As well said by counsel for appellee: "If, in order to avail of the presumption, it be necessary for the employé to show that the injury resulted from the negligent act of some employé in a different department of labor, or of some superior officer, etc., then the presumption would be entirely destroyed. It would be yielding to proof. There is never any need for a presumption after proof of liability is completed. Surely this court will not say that the Legislature meant that where an employé will take the burden of proof, and show that he was in fact injured by one of the excepted classes of fellow servants, he is entitled to the presumption; for the presumption would then be given after it was not needed, and could not have any application, for, as has often been held by this court, when the facts are known, presumptions are to be ignored. Of course, it is open to the railroad company always, when the presumption exists, to show that the negligence of a fellow servant was not embraced in section 193. In this case, in which we invoke the presumption, it was competent for the defendant to have shown that the negligence, in fact, was the negligence of a fellow servant, if that could have been shown; but no such effort was made no such defense was set up or pleaded."

So far as the point pressed, that there may be cases in which an employé would be given the benefit of the presumption of negligence where on the disclosed evidence it would appear that the negligent employé was a fellow servant, it is suflicient to say that it

is manifestly the duty of the railroad company to make that showing itself, since it is defensive, and since, when made, it will end, not only presumptions, but the whole case of the plaintiff. And it is further to be said, on this precise point, that if there should ever occur the extreme case suggested by appellant's counsel, in which the plaintiff, an employé, should stand upon the presumption of liability given by the statute, when he had within his command the proof showing that the negligence in the given case was the negligence of a fellow servant, and hence that there was no liability, then it is to be said, with respect to such extraordinary caserarely ever possible to happen-that it is bet ter, on the ground of public policy, that the presumption should be given the employé, even in that case, standing upon the presumption alone, without any testimony whatever, than that the railroad company should be released from possible liability on the presumption alone, when in nearly every possible case the company has itself the completest and fullest knowledge of how the injury happened, and should produce it in exculpation of itself; and, second, that the danger suggested of a fraudulent employé's recovering, on a presumption alone, when he himself has in his power the production of the testimony showing how the injury happened, and that it happened in a way exculpating the defendant, is far more fanciful than real, because of the obvious fact that it would always be in the easy power of the defendant company to put the plaintiff himself on the stand and compel him under oath, through the testimony within his power, to show the real truth as to how the injury happened. It will never do, in the practical administration of justice, to minimize or pare away the power and value of this presumption, bottomed on a great public policy, wise and wholesome, by fanciful conjectures as to what might, in some peculiar case, possibly take place. It is to what will generally, and usually, and ordinarily, happen, in the application of this presumption, that we should look, and not to the dimly possible occurrence of a fraudulent suit, such as suggested. Indeed, we dismiss this contention of appellant with the emphatic declaration that none of the difficulties in which the court has been involved, by the ill-considered announcements in the Trotter Case, 60 Miss. 442, Short Case, 69 Miss. 848, 13 South. 826, and the Humphries Case, 83 Miss. 721, 36 South. 154, would ever have occurred if the court, disregarding the awkwardness of the language of the Legislature in section 1808 of the Annotated Code of 1892, and looking, as it ought to have looked, to the spirit and purpose and scope of the section, had held, as we now hold, that the statute was intended to establish a rule of prima facie evidence of liability on the part of the company itself in favor of those named in the statute. It should have been interpreted precisely as if it had been