Jackson v. Mobile & O. R. Co.

• Decision Date: 26 November 1906
• Parties: SARAH V. JACKSON ET AL. v. MOBILE & OHIO RAILROAD COMPANY
• Court: Mississippi Supreme Court

42 So. 236

89 Miss. 32

SARAH V. JACKSON ET AL. v. MOBILE & OHIO RAILROAD COMPANY

Supreme Court of Mississippi

November 26, 1906

FROM the circuit court of Noxubee county, HON. ROBERT F. COCHRAN Judge.

The appellants, Mrs. Jackson and others, the widow and children of W. R. Jackson, who met his death in the accident giving rise to the suit, were plaintiffs, and the railroad company was defendant, in the court below. The court below sustained defendant's demurrer to plaintiffs' replication to defendant's plea of contributory negligence, and plaintiffs declining to plead further, judgment was given for defendant, and the plaintiffs appealed to the supreme court. The opinion of the court states the case as presented by the pleadings.

Judgment affirmed.

A. F Dent, and T. E. Rives, for appellant.

We submit that under the facts and circumstances of this case, W. R. Jackson was in no degree negligent in attempting to cross the railroad track at the time he did, and under the circumstances under which he attempted to cross.

He crossed immediately behind the receding freight train; he had no knowledge whatever of any approaching passenger train; no passenger train or other train was scheduled to pass over that crossing at that time; he received no warning of any approaching train; the employes in charge of the train failed to ring a bell or blow a whistle, as required by the statute; he was not required to be on the lookout for pitfalls. All of these circumstances, we earnestly submit, show beyond question that Jackson was in no degree negligent.

In support of this view, see Railroad Co. v. Cline, 45 Am. & Eng. R. Cas., 150 (135 Ill. 41; 25 N.E. 846); McGovern v. Railroad Co., 67 N.Y. 417 (15 Am. Ry. Rep., 119); Railroad Co. v. Fishell, 32 Ill.App. 41; Railroad Co. v. Dunn- leavy, 39 Am. & Eng. R. Cas., 381; Read N Railroad Co., 74 Iowa 188; Kellogg v. Railroad Co., 79 N.Y. 72; Hopson v. Railroad Co., 87 Miss. 789.

Gross negligence was shown on the part of the railroad company, and the jury should have been allowed to determine what was the proximate cause of the injury. Railroad Co. v. Dill, 22 Ill. 264; Railroad Co. v. Blackman, 63 Ill. 117; Railroad Co. v. Devorak, 7 Ill. App., 555; Railroad Co. v. Davis, 42 Am. & Eng. R. Cas., 70; Railroad Co. v. Logue, 47 Ill. 292; Railroad Co. v. Boltcher, 131 Ind. 82; Railroad Co. v. McClure, 26 Ind. 370; Railroad Co. v. Bodemer, 54 Am. & Eng. R. Cas., 177; Cook v. Railroad Co., 67 Ala. 533.

J. M. Boone, for appellee.

The fact that the railroad ran its passenger train close to a preceding freight train and did not blow its whistle or ring its bell, did not justify the deceased in attempting to cross the track at this crossing without taking some precaution to ascertain whether or not there was any danger in so crossing the said track. The employes in charge of the train are not bound to stop every time they see a person approaching a crossing or walking on the track. They may not wantonly injure or kill, but they may assume that the person seen on the track at a place where there is no difficulty in his leaving it will exercise the common instinct of self- preservation and get off of the track. Mobile, etc., R. R. Co. v. Stroud, 64 Miss. 793; Railroad Co. v. McGowan, 62 Miss. 695; Crawley v. Railroad Co., 70 Miss. 340; Jobe v. Railroad Co., 69 Miss. 459.

We say that the rule of this court is that the traveler must use all reasonable precaution to apprise himself of the approach of a train, and the cases of Railroad Co. v. Crominarity, 86 Miss. 464, and Hopson v. Railroad Co., 87 Miss. 789, do not conflict with this rule.

The only facts relied upon in this replication explaining the action of the deceased was, first, that there was no train at that time scheduled to run on said track at that place. This was not an excuse. The railroad has a right to run special trains and to use its track for such trains at such times as it may see proper, and the deceased had no right to presume, because a train had just passed that place, that another train was not about to pass. It was his duty to apprise himself as to whether or not there was another train going to pass after this freight train had passed. Second, that a freight train had, immediately before that time, passed said crossing. This is no excuse, for, after the freight train had passed, the light of the sun was still shining and the deceased was still in possession of his eyes and ears, and could have looked or listened, and, having looked and listened, would have discovered the approaching train and stopped his wagon. If the noise of the preceding train had interfered with his sense of hearing, it was the more incumbent upon him to use the sense of sight. Third, that the agent of the railroad in charge of the said train gave no signal, either by blowing the whistle or ringing the bell. As held in the numerous cases in this state, that does not excuse the deceased from exercising reasonable care and precaution in approaching railroad crossings. It was negligence on the part of the engineer, but under the law nothing more than mere negligence, and under the replication in the case not alleged to be more than mere negligence on the part of the engineer; and if the deceased's negligence contributed to the injury resulting from the simple negligence of the employes of the railroad company, it is a bar to the right of recovery. As held in the Stroud and McGowan cases, supra, it being a well settled and unbroken rule of this court. The plaintiffs, having presented their case in the replication as strongly as the proof could have shown it, they declined to plea further and allowed the court to render judgment dismissing their case. Mobile & Ohio R. R. Co. v. Roberts, 23 So. 393; Railroad Co. v. Crockett, 78 Miss. 412; Hackney v. Railroad Co., 33 So. 723; Murdock v. Railroad Co., 77 Miss. 487; Railroad Co. v. Cooper, 68 Miss. 368; Railroad Co. v. Neubeur, 62 Md. 391.

OPINION

MAYES, J.

At the February term, 1906, of the circuit court of Noxubee county Mrs. Jackson and others sued the Mobile & Ohio Railroad Company for $ 25,000 for the killing of W. R. Jackson, husband of Mrs. Jackson and father of the other parties named in the declaration. The declaration alleges that W. R. Jackson was returning home from the city of Macon, driving on a public highway which crossed the Mobile & Ohio Railroad at what is known as the "levee crossing," about one and one-half miles from Macon; that W. R. Jackson, exercising all the care and prudence of a reasonable man, arrived at the crossing when one train, operated by the Frisco System over the line of the Mobile & Ohio Railroad Company, was passing north along said line, and as soon as said train had passed, the said Jackson, still exercising the prudence of a reasonable man, attempted to cross the track, knowing, as he did, that he had ample time to cross the track without any danger to himself, in case the said Mobile & Ohio Railroad Company exercised such care and caution as it was required to do by law. While in the act of crossing said railroad, the employes of said railroad company, in care of a passenger train, and in closer proximity to said Frisco train than ordinary care and prudence would sanction, and closer than they are authorized to do by law, the said Jackson being in ignorance of the same, carelessly, wantonly, and recklessly, and in total disregard of the life of the...