Alabama & V. Ry. Co. v. Graham

• Decision Date: 15 October 1934
• Docket Number: 31074
• Parties: ALABAMA & V. Ry. Co. et al. v. GRAHAM et al
• Court: Mississippi Supreme Court

157 So. 241

171 Miss. 695

ALABAMA & V. Ry. Co. et al. v. GRAHAM et al

No. 31074

Supreme Court of Mississippi

October 15, 1934

Division A

1 RAILROADS.

Under statute requiring railway company to erect and keep in order bridges over highways at such points as bridges may be necessary to cross railway, railway's duty was not limited to erection and maintenance of bridges only at points where it was impossible to otherwise cross tracks (Code 1906 section 4053).

2 RAILROADS.

Under constitutional provisions vesting in county boards complete jurisdiction over highways and bridges, adjudication of county board ordering railway to erect bridge over highway, un-appealed from, was conclusive upon railway (Constitution 1890, section 170).

3. RAILROADS.

Where county board ordered railway to erect bridge over highway, by common law and by statute, continuing duty rested on railway to maintain bridge and approaches in good order and in condition reasonably safe for ordinary uses of public (Code 1906, section 4053; Constitution 1890, section 170).

4. RAILROADS.

That county assumed part of cost of railway bridge over highway, and burden of erecting and maintaining bridge and approaches thereto, did not relieve railway of statutory duty of maintaining bridge and approaches in good order and in condition reasonably safe for ordinary uses of public (Code 1906, section 4053).

5. HIGHWAYS.

That constitutional provision vesting in county boards complete jurisdiction over highways and bridges was amended by authorizing creation of State Highway Commission did not affect county board's jurisdiction, but authorized taking away exclusive jurisdiction over certain highways and conferring it upon State Highway Commission (Constitution 1890, section 170, as amended in 1924).

6. RAILROADS.

Amendment to Constitution authorizing transfer of exclusive jurisdiction over state highways to state highway commission, and statutes giving state highway commission such jurisdiction and charging it with duty of maintaining such highways, did not affect statutory duty of railway of maintaining bridges over railways and approaches thereto (Code 1906, section 4053; Code 1930, sections 4999, 5006, 5007, 6127; Constitution 1890, section 170, as amended in 1924).

7. RAILROADS.

Statutes conferring exclusive jurisdiction on state highway commission over state highways and charging it with duty of maintaining such highways held not conflicting with statute imposing duty upon railways of maintaining bridges over railways and approaches thereto, and did not relieve railways of that duty (Code 1906, section 4053; Code 1930, sections 4999, 5006, 5007, 6127).

8. RAILROADS.

If railway discharges its duty to keep bridge across railway in such condition as to render it reasonably safe for persons using ordinary care, railway company is discharged from liability (Code 1906, section 4053).

9. NEGLIGENCE.

Where railway failed to keep bridge across railway in such condition as to render it reasonably safe to persons using bridge, and failure contributed to injury of person using bridge, recovery would not be barred by reason of negligence of such person because such negligence would only operate to diminish damages (Code 1906, section 4053).

HON. W. H. POTTER, Judge.

APPEAL from the circuit court of Hinds county HON. W. H. POTTER, Judge.

Suit by Mrs. Lillian Graham and others against the Alabama & Vicksburg Railway Company and another. From a judgment for plaintiffs, defendants appeal. Affirmed.

Affirmed.

May, Sanders, McLaurin & Byrd, of Jackson, and Burch, Minor & McKay, of Memphis, Tennessee, for appellants.

At the time this bridge was built in 1922, there was a grade crossing at this point by which the traveling public could and did cross these tracks conveniently. The county did not await action of the railroad company, but after advertisement for competitive bids, let the contract to the Blodgett Construction Company, and that company built the entire structure.

The county dictated the plans and specifications and accepted the bridge but apparently thereafter had nothing to do with it as it was turned over to the state highway department.

Whatever the right or power of the state highway commission at the time, 1922, in 1926 the Legislature, pursuant to a constitutional amendment, established a system of state highways (chapter 218), and thereafter vested complete control and jurisdiction over state highways, including this one, in the state highway department and that department has exercised jurisdiction and control over this bridge ever since.

Code of 1930, sections 4989-5021.

No negligence is chargeable to defendants in original construction of this structure.

This viaduct is an integral part of the state highway system and only the state highway commission had the right or the duty to make alterations or improvements.

Railroad v. Sneed, 84 Miss. 257-8.

No negligence is chargeable to defendants with respect to maintenance of or failure to improve the viaduct.

Act of 1930, chap. 47, secs. 4989 et seq. of the Code; Sections 4999, 5006 and 5007, Code of 1930; Gulf, etc., R. Co. v. Pistole, 120 So. 159, 163.

The right and duty to make improvements in this viaduct rests upon the persons or tribunal having "complete control and supervision" and having "exclusive control."

Ill. Cent. R. Co. v. Middleton, 109 Miss. 199; State College v. Morris, 165 Miss. 766-7.

The plaintiff is not entitled to recover even on assumption that railroad was under obligation to maintain this bridge.

Gulf, etc., H. Co. v. Simmons, 150 Miss. 536; McComb City v. Mayman, 124 Miss. 535; Wasser v. Northampton, 249 Pa. 25.

There was no reasonable care in the use of this bridge at the time of the accident.

Section 4053 of the Code of 1906 (6127 of 1930), is not applicable.

Chalmers Potter, of Jackson, and M. Ney Williams and H. B. Gillespie, both of Raymond, for appellees.

Regardless of the legal question that it was the duty of the railroad company, which duty the board of supervisors was without power to relieve the railroad company from performing, it appears that this bridge was the bridge of the railroad company to the same extent as if they had built it alone. Any argument of the railroad company based upon an assumption that the company could not be liable because the plans and specifications of the county, falls, because the assumed facts are not as stated in the brief.

Southern Indiana Railroad Co. v. McCarrell, 71 N.E. 156, 163 Ind. 469; Crist v. St. Paul & S. S. M. Railroad. Co., 202 N.W. 57, 162 Minn. 1.

The purpose of the constitutional amendment conferring jurisdiction over certain state roads to the highway commission and the statutes enacted by the Legislature pursuant thereto, insofar as we have been able to discover did not undertake in any amount to relieve the company from this obligation, except that it changed the amount that the railroad would have to pay in erecting a bridge from the entire cost to one-half thereof.

22 R. C. L., 890-891-892-906; State v. Minnesota Transfer Co., 50 L. R. A. 656; State ex rel. v. St. Paul, M. & M. R. Co., 38 Minn. 246; Illinois Central Railroad Co. v. Copiah County, 81 Miss. 693; Crist v. Minneapolis, St. Paul & S. S. M. Railroad Co., 202 N.W. 57, 162 Minn. 1.

A case directly in point as to whether or not the passage of the code provisions creating the now highway commission and defining its duty and power, giving them, "exclusive control" over state highways and placing the duty upon them to construct, re-construct and maintain state highways repealed the provisions of the law relative to the duty of railroads to erect and maintain bridges at all points where it was necessary for bridges to cross the railroad is that of Root v. Connecticut Co., 108 A. 506, 94 Conn. 27.

City of Laconis v. Boston & Maine R. R. Co., 128 A. 350.

In the case of Engertrom v. Duluth M. & N. R. R. Co., 251 N.W. 131, it was held that the passage of an act transferring jurisdiction to the commission over primary roads did not relieve the railroad company of its duty imposed by law of keeping crossings and bridges over its right of way in safe condition.

Gulf, C. & S. F. Railroad Co. v. Wood, 262 S.W. 229; Virginia Railroad Co. v. Farr, 136 S.E. 668-72; Stone v. Seaboard Air Line, 197 N.C. 429, 149 S.E. 399; Louisville & I. R. Co. v. Speckman, 183 S.W. 919; Paducah & E. R. Co. v. Commonwealth, 80 Ky. 147.

Where guard rails to a bridge of its approaches are clearly necessary for the safety of travelers, a failure to erect or properly to maintain them is negligence for which the municipality or the company charged with the duty to maintain the bridge is liable to a party who in the observance of due care is injured by reason of such neglect.

9 C. J. 477; 4 R. C. L. 417; Bond v. Inhabitants of Billerica, 126 N.E. 282; 27 A. L. R. 941, Sufficiency of the Barrier; Bancroft v. East Montpelier, 94 Vt. 163, 109 A. 39; Richmond v. Bethlehem, 79 N.H. 78, 104 A. 773; Norfolk & Western Railroad Co. v. Kelley, 151 S.E. 121.

The railroad is negligent if it maintains a bridge with insufficient guard rails.

The rule as to the duty of the railroad company in respect to this bridge is the same as a municipality in the care of its streets and sidewalks.

Jordon v. Lexington, 133 Miss. 440-449; Dent v. Mendenhal, 104 So. 82.

Under practically all the authorities the bridge including the approaches is one entire structure.

9 G. J. 460; 4 R. C. L. 194.

Argued orally by H. D. Minor, for appellant, and by Chalmers Potter, for appellee.

OPINION

Cook, J.

Appellees the widow and sons of David Graham, deceased, instituted this suit against the Alabama & Vicksburg Railway Company and the ...