Anderson v. Alabama & V. Ry. Co

• Decision Date: 16 March 1903
• Citation: 33 So. 840,81 Miss. 587
• Parties: EMANUEL ANDERSON v. ALABAMA & VICKSBURG RAILROAD COMPANY
• Court: Mississippi Supreme Court

33 So. 840

81 Miss. 587

EMANUEL ANDERSON v. ALABAMA & VICKSBURG RAILROAD COMPANY

Supreme Court of Mississippi

March 16, 1903

FROM the circuit court of Warren county. HON. JAMES H. NEVILLE Judge.

Anderson appellant, was plaintiff in the court below. The railway company, appellee, was defendant there. From a judgment in favor of defendant plaintiff appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Affirmed.

S. N Collier and W. E. Mollison, for appellant.

It is manifest that the verdict was contrary to law and the evidence, and that the motion for a new trial should have been sustained. Section 3551, code of 1892, makes it a misdemeanor for a railroad company, upon stopping any train at a place where such railroad crosses a highway, to obstruct travel along such highway for a longer period than five minutes; and where one's travel along the highway is obstructed by a violation of this statute a civil action will lie. Railroad Co. v. Durfree, 69 Miss. 439. It is admitted that one of the appellee's trains failed to uncouple, and obstructed the highway for from fifteen to twenty minutes. It is admitted that appellant's travel along the highway was obstructed for five minutes. There is no dispute as to the damage appellant received. What, then is appellee's defense? Is it that the obstruction of appellant's travel was not the proximate cause of his injuries? We have, at least, appellee's admission that by its wrongful act appellant was deprived of five minutes of his time while traveling along the highway, and is not time valuable to a man? Is it not especially valuable to a man who, in feeble health, is traveling homeward about 8 o'clock in the cool nights of October? We cannot say with absolute certainty that appellant would not have been sick but for appellee's wrongful act; we cannot say that he would have reached home before the rain began, but we can say, with positive assurance, that but for appellee's act he would not have been kept out in the cold night air as long as he was; he would not have been kept out in the rain as long as he was, if at all; he would not have suffered as much, because he would have reached the comforts of home sooner--and are not pain and mental anguish subjects for damages? In all reason we may say that he would not have been as sick as he was and the expenses incurred from his sickness would have been less. But independent of this view of the case appellant was entitled to a judgment. Appellant had a legal right to a free and unobstructed travel along the highway. Kinnare v. Gregory, 55 Miss. 612. This right was violated by the wrongful act of appellee, and for every wrongful violation of a right the law presumes some damages. Rose v. Railway Co., 70 Miss. 725; Watson on Dam. for Per. Inj., 9, sufficient, at least, to carry the costs.

McWillie & Thompson, for appellee.

This was a suit brought by the appellant against the appellee for damages resulting to the plaintiff from the obstruction by the railway company of a highway crossing. The jury found for the defendant, and certainly the finding was not predicated of any erroneous instruction given in behalf of the appellee. It appears from the evidence that a freight train obstructed a crossing at Newman's Grove, and there is testimony to support the verdict, on the idea that the plaintiff was not delayed exceeding five minutes; but the most remarkable thing about the case is that there is not a scintilla of evidence to show whether the road which crossed the railway track was or was not a public road or highway.

The general rule is that the railway company has the right to occupy its tracks. The exception is found in § 3551 of the code, which provides that the railway company shall not obstruct travel upon a highway for a longer period than five minutes. An essential part of the proof to recover of a railway company in cases like the one at bar is evidence to the effect that the road crossing which was obstructed was a highway crossing. The character of the road must be shown in evidence, and it must be shown to be a highway--that is, a public road in the country. The court will recollect that street crossings are especially provided for in the same section of the code. The words "public road" is not used, nor is the word "highway" used, by any witness. The witnesses speak of the road which crosses the railway at Newman's Grove, but none of them negative the idea of its being a private road. Manifestly, therefore, the plaintiff failed to make out his case, and the verdict in favor of the defendant will have to be affirmed.

But again, there was testimony for the defendant showing that the plaintiff was not obstructed in his passage over the railway track exceeding five minutes. The jury had a right to believe the witness who testified that plaintiff was not detained exceeding five minutes, and to predicate their verdict on...