Austin v. Vicksburg Traction (Stree Railway) Co.
| Decision Date | 13 December 1909 |
| Docket Number | 14,191 |
| Citation | 95 Miss. 867,50 So. 632 |
| Court | Mississippi Supreme Court |
| Parties | JACOB S. AUSTIN v. VICKSBURG TRACTION (STREET RAILWAY) COMPANY |
FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.
Austin appellant, was plaintiff in the court below; the Vicksburg Traction Company, appellee, was defendant there. From a judgment predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The opinion of the court states the facts.
Reversed and remanded.
McLaurin Armistead & Brien, for appellant.
The court below erred in peremptorily instructing the jury to find in favor of the appellee. Jackson Electric, etc Co. v. Carnahan, ante, p. 66, 48 So. 617.
There can be no trespassers upon street railway tracks, for the public have a right equal with the street car company to use streets and public roads, and the public may at all times cross the railway tracks. 2 Thompson on Negligence, § 1374, and cases cited in note 2 thereunder. See also Dallas Rapid Transit Co. v. Elliot, 7 Tex. Civ. App. 216; Ellis v. Lynn, etc., R. Co., 160 Mass. 341; Muncie Street R. Co. v. Maynard, 32 N.E. 343.
The appellee is bound under the law to run its cars at such a rate of speed, as not to prevent the motorman from maintaining control of his car, so as to stop it within a reasonable distance, upon the appearance of danger to others and if he fails to do this, the company will be liable, for others have an equal right to use the streets and public highways. Jackson Electric, etc. R. Co. v. Carnahan, ante, p. 66; 2 Thompson on Negligence, §§ 1359, 1420.
Where persons or domestic animals are so situated that they cannot get away from the danger of being injured by street cars or railroad trains, and employes run them down and injure them, the company will be liable for wilful negligence. See Railway Co v. Moore, 81 Miss. 14; Tyler v. Illinois, etc., R. Co., 61 Miss. 445; Newman v. Vicksburg, etc., R. Co., 64 Miss. 115; Mobile, etc., R. Co. v. Holt, 62 Miss. 170.
As to the liability of the railway company for injuries resulting from the frightening of a horse by a moving street car, see Metropolitan, etc., R. Co. v. Fawcett, 92 Miss. 543; Heidelburg v. Peoples' R. Co., 65 A. 587; Lexington R. Co. v. Fain, 80 S.W. 463.
In this case the jury and not the court, should have determined whether the motorman saw or could have seen the danger in which appellant was placed by reason of the frightening of his horse. 2 Thompson on Negligence, §§ 1374, 1420; Ellis v. Lynch, etc., R. Co., supra.
Smith, Hirsk & Landau, and S. S. Hudson, for appellee.
This is a case of pure accident, and no liability was thereby imposed upon the appellee. If a motorman must stop his car because a horse three hundred feet away raises his head and backs away from the track and suddenly turns round in such a manner as to tilt the buggy to which he is attached, while the car is coming along in its own track, the occupant of the buggy, if thrown out, cannot hold the street railway company liable therefor. Stewart v. Galveston, etc., R. Co., 78 S.W. 979; Citizens' Street R. Co. v. Lowe, 39 N.E. 165; Coughtry v. Williamette Street R. Co., 27 P. 1031.
This case is so similar in its facts to that of Wright v. Vicksburg Ry. etc., Co., recently affirmed by this court without an opinion, and holding the railway company not to be liable because of injuries resulting from the frightening of a horse on the highway, that further citation of authorities is unnecessary to show that the court below was correct in granting the peremptory instruction in favor of the appellee.
It is not shown in evidence that the appellant's horse was uncontrollable, or that the motorman saw appellant's signal nor heard his voice; or that the horse ever ran any distance or did anything otherwise than merely to hold his head high, back the buggy slightly, make a sudden turn thereby tilting the buggy so that appellant fell against the side of the car. Furthermore, it is not shown that the motorman did not make proper efforts to stop the car. In Terre Haute Electric Co. v. Yant (Ind.) 51 N.E. 732, the court held that a street railway company is not liable for the failure of its motorman to stop a car running at its proper speed, on approaching a frightened horse in the highway, where it does not appear that the horse could not be controlled or where it is not shown that the motorman had reason to apprehend the occurrence of an accident. See also Doster v. Charlotte Street R. Co., 23 S.E. 449.
Suit was instituted in the court below by appellant to recover from appellee, a street car company, damages for an injury alleged to have been sustained by him by reason of the negligent operation of appellee's road. In December 1908, appellant was going to Vicksburg from his home, about sixteen miles in the country. As he arrived at the foot of the...
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