Columbus & G. Ry. Co. v. Duease

• Citation: 108 So. 151,142 Miss. 713
• Decision Date: 08 March 1926
• Docket Number: 25483
• Parties: COLUMBUS & G. RY. CO. v. DUEASE et al. [*]
• Court: Mississippi Supreme Court

108 So. 151

142 Miss. 713

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

No. 25483

Supreme Court of Mississippi

March 8, 1926

Division B

Appellee's Suggestion of Error Overruled March 22, 1926.

1. RAILROADS. Where all facts are not in evidence, prima-facie instruction under statute is proper, but instruction that evidence must exculpate railroad to satisfaction of jury is error (Code 1906, section 1985 [Hemingway's Code, section 1645]).

Where an injury results from an automobile being struck by a locomotive of the railroad, and where all the facts are not produced in evidence, it is proper to give the prima-fade instruction under section 1985, Code of 1906 (Hemingway's Code, section 1645), but it is error to instruct the jury that the evidence must exculpate the railroad company to the satisfaction of the jury before it will relieve the company from liability.

2 RAILROADS. Railroad maintaining private crossing for public Held under common-law duty to give proper signals when locomotives are approaching.

Where a collision between a locomotive and an automobile occurred, at a private crossing kept up and maintained by the railroad company, where such railroad has a depot and platform for the use of those desiring to board or depart from the passenger trains, and where the railroad maintains a switch for the purpose of loading and unloading freight, and where such crossing had been maintained for a long time, and was the only crossing at such place, and is open to the public to travel at will, with the acquiescence and consent of the railroad company, it is the duty of the railroad company at common law to give proper signals when its locomotives are approaching such crossing.

3 RAILROADS. Charging that, where one uses private crossing maintained, for public travel, although only as licensee railroad owes same duty as it owes one at public crossing held error.

In the case of a private crossing, as stated in the preceding syllabus, it is error for the court to charge the jury that, where one uses the crossing, although only as a licensee, the company owes him the same duty as it owes one crossing at a public crossing. There is a difference between the duty imposed by statute at public crossings, and the duty imposed at common law with reference to private crossings.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS, Judge.

Action by Mrs. Ora Duease and another against the Columbus & Greenville Railway Company. Judgment for the plaintiffs, and defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Chapman, Moody & Johnson and Gardner, Odom & Gardner, for appellant.

Our contention is that under the testimony in this case, the peremptory instruction asked for by appellant should have been granted. There is absolutely no testimony whatever showing, or even tending to show, any negligence on the part of any employee of appellant. The place where the accident occurred was a private crossing, on a straight track, perfectly plain and open for several miles each way.

The crossing is not a highway. It will be noticed that there was no effort made to show that there were any peculiar or extraordinary circumstances surrounding this crossing known to trainmen, where ordinary prudence would require an alarm or signal to be given by an approaching train. The court will notice in the instructions which we shall cite and discuss hereafter, that the trial court seemed to be under the impression that because this private crossing was maintained by the railroad for the use of the public in the handling of freight and passengers, it was necessary for an approaching train to give the statutory signals, the blowing of the whistle and the ringing of the bell. This, of course, we submit, was erroneous and finds no support either in the statute or any of the decisions of this court construing the statute.

One of the latest announcements of this court, as to the necessity for the ringing of the bell or the blowing of the whistle, under section 4045, Hemingway's Code, is Columbus & Greenville Ry. Co. v. Burnside, 104 So. 701. In that case an instruction was given predicated upon the fact that the crossing in that case, as in this, was a highway and the statutory signals should have been given. The court reversed the decision of the lower court and held that the evidence was insufficient to support the finding that the road on which Burnside was traveling was a public one, within the purview of the railroad statute. The court quoted with approval the decision of this court in C. & S. R. R. Co. v. Adkinson, 117 Miss. 119.

The facts in this case do not bring it within the rule announced in Dillon v. I. C. R. Co., 111 Miss. 520. See also I. C. R. Co. v. Mann, 106 So. 7, in which this court holds that where the crossing is not on a highway and there are no peculiar or extraordinary circumstances surrounding the crossing and known to trainmen, it is not necessary that these signals be given. From no point of view can it be said that this private road was a highway. Warren County v. Mastronardi, 76 Miss. 273; Burnley v. Mullins, 86 Miss. 144; Wills v. Reed, 86 Miss. 446; C. & S. R. R. Co. v. Adkinson, 117 Miss. 118; C. & G. Ry. Co. v. Burnside, 104 So. 701.

By reference to the instruction given for the appellees on the prima-facie statute, it will be seen that it is squarely in conflict with the very latest, and we think one of the strongest, decisions that has ever been rendered by this court on the prima-facie statute. We have reference to Brown v. C. M. & N. R. R. Co., 138 Miss. 39, where our court condemned the giving of an instruction very much like this one.

The court will notice that this instruction requires the appellant to produce all of the facts and circumstances, explain all of the facts and circumstances surrounding the killing, and then after having done that, the appellant is further required to exculpate itself to the entire satisfaction of the jury. We submit that this instruction is directly in the face of the instructions heretofore condemned in this court, not only in the Brown case, supra, but the McCullers case, 121 Miss. 666; the Daniell case, 108 Miss. 358; and the Gray case, 118 Miss. 612.

We also contend that under the facts in this case no instruction whatever should have been given under the prima-facie statute because under our "stop, look and listen" statute, in driving upon the track without stopping, looking or listening, as required by the law, the deceased certainly committed an unlawful act under this statute, which was the proximate cause of the injury sued for and cannot be made the basis for an instruction making the railroad company prima-facie liable in this case.

It is interesting to note the number of decisions that have been rendered by this court in passing upon this prima-facie statute. By reference to the annotations of section 1645, Hemingway's Code, and the reports, it will be found that there are over eighty-seven decisions of this court passing on this statute, which is certainly one of the plainest and most unambiguous statutes in the code. The fact that there have been so many decisions, passing on and construing this statute, to our mind, is proof positive that there is something radically wrong in the construction of this statute.

The next statute which has been variously construed is the "Business Sign" statute, or section 1300, Code of 1880. This section has forty-seven decisions to its credit, not a close second at all to the prima-facie statute.

We believe that when you come to consider again this prima-facie statute in the light of the "stop, look and listen" statute, which has been violated, that you will agree with us that it is but common justice and fairness to the railroad company to prohibit the giving of any instruction for either side, under this state, where the testimony shows how the accident occurred and where there is no dispute or contradiction between the witnesses for the plaintiff and the defendant.

Instruction No. 2 is just as erroneous and prejudicial. It will be noted that the jury is told that if it believes, which is not disputed, that a private road leads from a public highway at Purnell, which is true; that appellant maintains a depot and platform for the use of those who desire to leave or board its trains at Purnell; that it maintains a switch or spur track at Purnell for the loading and unloading of freight; that the defendant constructed and had maintained for a long number of years a crossing over its track as a part of this private crossing so built and maintained by the defendant, and which crossing is the only crossing at Purnell; that said road is apparently open to the public to travel at their will, and that said crossing is used with the acquiescence and consent of the appellant--all of which is admitted and never denied in any way--then the instruction further provides that, "It is the duty of the defendant to give signals when approaching said crossing for the benefit of those who may be traveling said road." This is new law to us, we must confess. We do not know of any statute which requires any signals to be given except at a street or highway.

Instruction No. 3 was improperly given, for the reason that the deceased were not at this crossing for the purpose of attending to any business with the appellant. In other words, appellees were not licensees or invitees for the purpose of transacting any business with the company. The giving of this instruction was erroneous in the light of the testimony in this case.

Everett & Forman, for appellees.

I. Counsel's first contention is that a peremptory instruction should have been given because they say: (1) That there is no evidence showing or...