Alabama & V. Ry. Co. v. McGee

Citation117 Miss. 370,78 So. 296
Decision Date11 March 1918
Docket Number20006
PartiesALABAMA & V. RY. CO. v. MCGEE
CourtUnited States State Supreme Court of Mississippi

Division A

APPEAL from the circuit court of Scott county, HON. J. D. CARR Judge.

Suit by Dr. T. Q. McGee against the Alabama & Vicksburg Railway Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

R. H. &amp J. H. Thompson, for appellant.

That the plaintiff was guilty of gross contributory negligence as a matter of law, cannot be questioned on this record; his going upon the track after seeing and knowing of the approach of the passenger train, even though he misjudged its distance from the crossing, does not relieve him from his own negligence.

The supreme court of Louisiana in a recent case, decided November 13, 1916, has decided that: "It is negligence per se for a traveler, seeing the rapid approach of a fast passenger train, to attempt to cross the track a short distance in front of the locomotive, and in such case, the belief of the deceased (the traveler) that he could cross in safety is no excuse for his negligence; and prior negligence in the operation of the train does not affect the situation." Khoury v. Louisiana Ry. Co., 72 So. 998. The court is asked to consider the authorities referred to by the Louisiana court in the case cited.

While contributory negligence is not a perfect defense for personal injuries, it is a perfect defense to a suit for property injuries. Laws of Mississippi 1908, chapter 135, page 125. In this case there could not rightfully have been any recovery for the injury done plaintiff's buggy; and yet the plaintiff did not dismiss his demand for damages done to the buggy; on the contrary, each of the instructions asked by and given for plaintiff, to which we have herein before called attention, concluded with a direction to find for plaintiff one of them using these words: "To compensate him for his injuries," and the other authorizing the award to be "in such sum as the jury believe from the evidence to be fair, just and reasonable," and neither instruction in any way eliminated damages because of the practical destruction of the buggy.

The instructions were manifestly erroneous in the regard just mentioned, and it is no answer to say that the testimony did not warrant it, the question of damages to the buggy ought not to have been submitted to the jury, even if plaintiff had not been guilty of contributory negligence, and yet it was submitted by the plaintiff and a recovery therefor authorized by the plaintiff's own instructions. Error in submitting to the jury the matter of damages to the buggy because of plaintiff's contributory negligence was not and could not be cured by the fact that another reason existed for witholding the question from the jury. Two valid reasons for a correct proposition do not weaken each other or render the proposition an incorrect one. Nor can it be said that no part of the award was given because of the damage done to the buggy. That it was badly broken was made known to the jury and they were authorized by plaintiff's instructions to award damages therefor, and presumably they did so. This is not a case where the error can be cured by a remittitur, because there is nothing in the record by which to determine the extent of a remittitur necessary to cure the error.

The judgment excessive. The judgment in this case for eight thousand dollars is grossly excessive and should be reversed for that reason unless a large remittitur shall be made by the appellant. The appellant was, as we have seen, guilty of gross contributory negligence, which would have completely defeated all recovery by him, but for our comparative negligence statute. Laws 1910, ch. 135 p. 125. The case is in many respects like that of Yazoo, etc., R. Co. v. Williams, 74 So. 835, recently decided by this court.

If it be said that the jury in this case were warranted to find that the headlight of the locomotive was dim, we answer McGee saw it and knew of the approach of the train. If it be claimed the jury found that the whistle was not sounded or the bell rung, we answer again, McGee knew of the approach of the train. In fact, we do not think there was evidence to justify a finding that the defendant was guilty of any negligence of which plaintiff can complain, while in the Williams case this court held that the testimony warranted a finding that the railroad company was guilty of negligence.

In the Williams case this court held that ten thousand dollars was grossly excessive and that five thousand dollars less one hundred and ninety-five dollars was as large a verdict for personal injury as the facts of the case would justify. In this case the verdict for eight thousand dollars is certainly excessive in view of the fact that the plaintiff was himself guilty of gross contributory negligence.

One of the best reasoned cases in support of our contention, and we do not think that it can be answered or that it has ever been distinguished or departed from, is the case of Pakoalinsky v. New York Central, etc., R. Co., 82 N.Y. 424; same case, 2 Am. & Eng. Railroad Cases, 251.

In Sissel v. St. Louis, etc., R. Co., 214 Mo. 515; same case, 15 Am. & Eng. Annotated Cases, 429, it was decided that: "Where it appears that a person injured by a train knew that the train was fast approaching, the failure to sound the bell or to blow the whistle is not a ground of recovery." While it is true that the Missouri case was not a suit for injuries inflicted at a crossing, yet its facts make it stronger in favor of the appellant than if it were one. 33 Cyc. 966; Hutchinson v. Missouri, etc., R. Co., 161 Mo. 246; s. c. 84 Am. St. Rep. 710.

We ask the court to note specifically the fact that neither the failure to give signals nor a defective headlight was the proximate cause of plaintiff's injury. We cannot resist the conclusion, aside from the gross negligence on the part of the plaintiff in undertaking to cross the railroad track in front of a rapidly approaching train with full knowledge of its approach that the real proximate cause of the injury, and its only proximate cause, was the slipping of the trace from the single-tree of the plaintiff's buggy; and upon this ground alone a final judgment should be rendered in favor of the appellant, since there was no proof that the employees of the railway company in charge of the train failed to do everything in their power to prevent injury after seeing the plaintiff's peril.

Frank F. Myers and E. W. Easterling, for appellee.

We will first discuss the case from the viewpoint that is was negligence on the part of the railroad company not to blow its whistle or ring its bell before approaching said crossing.

Section 6669, Hemingway's Code, Code 1906, section 4045, provides among other things, that every railroad company shall, for at least three hundred yards from the point where the railroad crosses any highway, keep the bell ringing or the whistle blowing until the engine has stopped or crossed the highway. Now, the law is that if the railroad company did fail to keep its bell ringing or its whistle blowing for at least three hundred yards before it crossed the highway and said failure contributed to appellee's injury, the appellant was liable.

Counsel for appellant, in their brief, take the position that since the appellee admitted that he saw the train at about the time he was attempting to go upon the railroad track and seeing it as he did bars his recovery, even though the railroad company failed to comply with the law in blowing the whistle or ringing the bell.

The falsity of this argument is easily demonstrated: First, if they did fail to ring the bell or blow the whistle as required by law, and notwithstanding this, he saw the train under the conditions as described by him, to-wit: In such a position as misled him as to its distance from the crossing, he would be only guilty, if guilty of anything, of contributory negligence, which would not bar his recovery, but only diminish his damage.

Second, the very object of the statute in requiring the bell to be rung or the whistle to be blown for at least three hundred yards before the train crosses any crossing or highway is to apprise persons about to cross the track at said highway of the near proximity of the train to them.

Now in this very case, under appellee's evidence, which the jury had a right to believe, and manifestly did believe as shown by its verdict, the purpose of this statute was defeated. Further, had appellant rung the bell or blown the whistle as required by law, it would have apprised appellee of the close proximity of the train to him at the crossing, and he could have taken precaution for his safety. In other words, he could have governed his conduct in accordance with the train approaching ringing its bell or blowing its whistle, instead of governing his conduct with reference to a train not blowing its whistle or ringing its bell, which he reasonably believed to be nearly two miles away.

What the duties of a person attempting to cross a railroad crossing are, cannot be measured by any well-defined rules as is laid down in Crominority v. L. & N. Railroad Company, 86 Miss. 467.

The real gist of our complaint on the part of appellant on this point is that its failure to comply with the law with reference to blowing the whistle or ringing the bell led appellee into a real dangerous situation at a time when he believed the situation far different from what it really was and not dangerous; and, if the court should accept appellant's view of the case that he went upon the track at a time when he saw the train approaching, yet if the railroad company did not blow its whistle or ring...

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