Columbus & G. Ry. Co. v. Buford

• Citation: 150 Miss. 832,116 So. 817
• Decision Date: 02 April 1928
• Docket Number: 27012
• Parties: COLUMBUS & G. RY. CO. v. BUFORD et al. [*]
• Court: United States State Supreme Court of Mississippi

116 So. 817

150 Miss. 832

COLUMBUS & G. RY. CO. v. BUFORD et al. ^[*]

No. 27012

Supreme Court of Mississippi

April 2, 1928

Division B

Suggestion of Error Overruled May 21, 1928.

APPEAL from circuit court of Carroll county, First district, HON. A T. PATTERSON, Special Judge.

Action by Mrs. Lorena S. Buford and others against the Columbus &amp Greenville Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Gardner, Odom & Gardner, for appellant.

Kimbrough, Tyson & Kimbrough, for appellees.

Argued orally by A. F. Gardner, for appellant, and J. A. Tyson and O. L. Kimbrough, for appellee.

OPINION

ETHRIDGE, P.J.

The facts in this case are very similar to those in the case of Columbus & Greenville Railway Co. v. Lee, 149 Miss. 543, 115 So. 782, recently decided by this court. In this case, however, the appellant, who was defendant in the court below, introduced a number of witnesses to impeach the reputation of the main witness for the plaintiff, and upon whom this case must be made out. There was no proof introduced to sustain the character of said witness for truth and veracity, and his testimony is absolutely essential to sustain the verdict and the judgment rendered in this case. His testimony, in some respects, was corroborated by the testimony of witnesses, who testified that they did not hear the bell rung between the three hundred-yard post and the crossing. This witness, who was driving the car in which the deceased was riding, testified that the Mississippi law stop sign was placed, as required by statute, near the crossing, and that he did not stop at such sign to look or listen for the approach of the train.

There are some instructions in the present case that are different from those in the Lee case, and it will be necessary to consider these instructions on this appeal.

For the plaintiff, among other instructions, was given the following:

"No. 7. The court instructs the jury that if they believe from the evidence that the negligence of Julius Steen in operating his automobile, and the negligence of the employees of the Columbus & Greenville Railway Co., in operating its train, united in causing the accident in which Jim Buford was killed, it is no defense for the railroad company to show that Steen was to blame in causing the accident.

"No. 8. The court instructs the jury that if they believe from the evidence that the death of Jim Buford was the result of the concurrent negligence of the driver of the auto and of that of the railroad company, it is the duty of the jury to find for the plaintiff.

"No. 9. The court instructs the jury for the plaintiffs that although you may believe from the evidence that Julius Steen, the driver of the automobile, and Jim Buford, the deceased, were both guilty of negligence in causing said Buford's death, that you should, nevertheless, find for the plaintiffs if you should believe from the evidence that defendant railroad company was also guilty of negligence in causing the death of said Buford."

"No. 11. The court instructs the jury for the plaintiffs that no presumption of negligence can, under the law, be indulged against Jim Buford in this case. The legal presumption, on the contrary, is that the said Buford was not guilty of negligence. The court further charges you that the defense of the railroad company that the death of the said Buford was occasioned solely by the carelessness and negligence of the occupants of the Automobile is an affirmative defense, and, before you can find that the said Jim Buford was guilty of any negligence whatever, such negligence on his part must be established by a preponderance of evidence."

"No. 5. The court instructs the jury that if they believe from the evidence that the deceased, Jim Buford, was at the time of the accident, a guest in the auto driven by Julius Steen, and they believe further from the evidence that the said Buford was not at the time directing or controlling the movements of the auto, then the negligence of the driver of the auto, if there was such negligence, cannot be imputed to the said Buford, deceased."

The court gave the following instructions, among others, for appellant:

"No. 4. The court instructs the jury that it is the duty of a passenger in a car to exercise some care or caution for his protection, and if in this case they believe from the evidence that the plaintiff's intestate did not exercise any care and caution in approaching the crossing where he met his death, and you further believe that the defendant was guilty of no negligence, then it is your duty to find for the defendant."

"No. 6. The court instructs the jury that if they believe from the evidence that the driver of the car was reckless and that the plaintiff's intestate did not remonstrate with the driver, or use ordinary care for his safety, and that as a result he was killed because of the failure of the driver to stop, look, or listen when he attempted to cross defendant's tracks, and provided further that the jury believed that the defendant was not guilty of any negligence in approaching its crossing, then you will find for the defendant.

"No. 7. The court instructs the jury that you, the "jury, may disregard the testimony of any witness testifying in this cause, if you believe that he has testified falsely or corruptly."

The court refused for the defendant instruction A, reading as follows:

"No. A. The court instructs the jury that if they believe that the general reputation of any witness in this case has been impeached for truth, they may reject his testimony entirely."

The court also refused instruction C, which is as follows:

"No. C. The court instructs the jury if you believe from the evidence that plaintiff's intestate did not remonstrate or endeavor to have the driver of the car in which he was riding to stop, look, or listen, or did not exercise ordinary care before going upon the tracks of the defendant, and you further believe from the evidence that if the driver of the car in which plaintiff's intestate was riding had stopped, looked, or listened, or exercised ordinary care, that the injury complained of would not have occurred, then it is your duty to find for the defendant."

The court also refused instruction J, which reads as follows:

"No. J. The court instructs the jury that it was the duty of the driver of the car to stop, look, and listen before crossing the track, and that if the jury believe that the driver of the car did not stop, look, or listen, and the plaintiff's intestate did not remonstrate with him for not stopping to look or listen, and that, as a result, the accident happened through no negligence of the defendant, then the jury will promptly find for the defendant."

The instructions above set out for the plaintiff we think, under facts of this case, called for the giving of instruction J, on the part of the defendant, and we think this instruction, under the Mississippi statute requiring automobiles to stop, and requiring the railroad company to erect signs in conspicuous places near to each crossing calling the attention of passengers and drivers of cars to the requirements of the statute, and imposing the duty upon drivers of cars to stop, look, or listen before crossing the tracks, and where there are passengers or guests in the car, and where there is light so the sign may be seen, and especially where persons know that such sign exists, and the crossing is being approached, is in full conformity with the statute; and that the passengers were required to...