Alabama & Vicksburg Ry. Co. v. Phillips

• Citation: 70 Miss. 14,11 So. 602
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. J. M. PHILLIPS
• Decision Date: 17 October 1892
• Court: United States State Supreme Court of Mississippi

11 So. 602

70 Miss. 14

ALABAMA & VICKSBURG RAILWAY CO. v. J. M. PHILLIPS

Supreme Court of Mississippi

October 17, 1892

FROM the circuit court of Warren county, HON. J. D. GILLAND Judge.

Action for personal injuries. Judgment for plaintiff for $ 300. Defendant appeals. The opinion sufficiently states the case.

Judgment reversed and cause remanded.

Shelton & Brunini, for appellant.

Appellant's duty to stop its train did not arise until the engineer saw that the vehicle would not stop. He had a right to suppose that drivers of all vehicles would be on the lookout for trains. Railroad Co. v. Mitchell, 52 Miss. 808. The right of the traveler upon the highway and at crossings of the company are, in a sense, equal, but that of the latter is superior in respect to priority of passage. Railway Co v. Walker, 3 Am. St. R., 638. There is no duty to stop because persons are seen approaching the track. It is presumed they will take needed precautions. 10 Am St. R 614; 11 Ib., 778. The only duty on defendant was not to move its trains over six miles an hour, give proper alarms, and for the engineer to be on the lookout. The fourth instruction imposes a different and greater degree of care, but still leaves it uncertain what the duty of the defendant was. From it the jury might well infer that, because the view of the crossing was obstructed, the train should have been brought to a standstill. The proper standard, as to negligence, in such case is given in Railroad Co. v. Scurr, 59 Miss. 456. It was necessary to show gross negligence or reckless disregard of consequences.

Nugent & Mc Willie, on the same side.

The fourth instruction assumes that there was evidence tending to show that it reasonably appeared to the engineer, at some time, that the herdic could not be stopped before reaching the track, and that the only issue was the exercise of ordinary care after such discovery. The reverse is shown by the uncontradicted evidence. The recitation of certain facts in the instruction gave undue prominence to them, and this is on the weight of evidence. Hemingway v. State, 68 Miss. 371; Cheatham v. State, 67 Ib., 335; Meyer v. Blakemore, 54 Ib., 570; Dean v. Tucker, 58 Ib., 487.

Dabney & McCabe, for appellee.

There was no error in the instructions. They were even more liberal than defendant was entitled to under the law. If error there was, it was in instructing that the company had greater rights at the crossing than the herdic had. Their rights were at least equal. There was evidence that the engine was backing at a rate of twelve miles an hour. The crossing was a public one, and the view obstructed. We submit there was gross negligence, and defendant should congratulate itself on the meagerness of the verdict.

Argued orally by W. L. Nugent, for appellant.

OPINION

COOPER, J.

The danger of multiplying instructions in the trial of causes finds another illustration in this case.

The plaintiff sued to recover damages for an injury caused, as he contends, by reason of the negligence of the servant of appellant in the management of an engine in the city of Vicksburg, by reason of which there was apparent danger of collision between the engine and a herdic, in which plaintiff was a passenger, to escape which danger he jumped from the herdic, and in so doing received the injury for which he seeks recovery.

The negligence of defendant's servant was sought to be established (1) by evidence tending to show that the engine was rapidly driven along defendant's road, where the same was crossed by Cherry street, and that no reasonable lookout was kept to see whether there was danger to persons passing along said street and across said road; (2) by evidence tending to show that after the danger was discovered by defendant's servant, he failed to exercise care to avoid the threatened injury.

Many instructions were asked, and among those given for the plaintiff was the following, marked 4 in the record:

"Negligence is a want of ordinary care. What would be negligence in one case might not be in another. The rule is, the greater the risk or danger, the greater must be the care; and in determining whether the defendant company used ordinary care in stopping its engine after it reasonably appeared to the person in charge that the herdic would not stop before reaching the track, the jury are to look at all the facts disclosed by the evidence--the fact that the collision occurred on one of the public streets of the city, where plaintiff had a right to be, and where persons and vehicles are constantly passing and repassing; the experience or inexperience of the person in charge of the engine; the speed at which it was going; the difficulty, if any, of seeing persons or vehicles approaching the crossing from either direction; the nearness he would have to approach to the crossing before he could see persons or vehicles on the same, and all...