Columbus & Greenville R. Co. v. Lee, 26535

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtSMITH, C. J.
Citation149 Miss. 543,115 So. 782
PartiesCOLUMBUS & GREENVILLE R. CO. v. LEE. [*]
Decision Date27 February 1928
Docket Number26535

115 So. 782

149 Miss. 543

COLUMBUS & GREENVILLE R. CO.
v.
LEE. [*]

No. 26535

Supreme Court of Mississippi

February 27, 1928


(In Banc.)

1. APPEAL AND ERROR. Excluding evidence which would not have warranted jury's believing motorist killed in collision with train was intoxicated, if error, held harmless.

Where plaintiff's intestate, a guest in automobile, was killed in collision with train at crossing, and an unopened bottle of whisky and an empty bottle were found near car immediately after it was struck, and automobile driver had testified on cross-examination that he was not drinking and did not know whether any of the others were or not, excluding answer to question, "Do you know whose whisky that was in the car?" where evidence would have been insufficient to warrant jury in believing that deceased was intoxicated, if error, held harmless.

[149 Miss. 544] 2. EVIDENCE. Testimony by persons in position to hear that train whistle was not blown and bell was not rung at crossing warranted jury's finding bell was not rung and whistle was not blown (Hemingway's Code 1927, section 7964).

In action for death of motorist killed in crossing collision, testimony of witnesses who were so situated that they would, in ordinary course of events, have heard hell had it been ringing or whistle had it been blowing, that bell was not rung and whistle was not blown as required by Laws 1924, chapter 320 (Hemingway's Code 1927, section 7964), as train approached crossing, was sufficient to justify jury in finding that bell was not rung and whistle was not blown.

3. RAILBOADS. Railroad was liable for motorist's death if its negligence concurred, though one cause was car's stalling on track.

Even though stalling of car on track in front of approaching train may have been one proximate cause of death of guest in automobile, railroad company was liable if its negligence concurred, since it is not necessary for defendant's negligence to be sole proximate cause of an injury.

4. RAILROADS. In action for death of motorist killed at crossing. whether railroad was negligent and whether negligence caused death held for jury (Hemingway's Code 1927, section 7964).

In action for death of guest in automobile killed in collision with train at crossing, question whether bell was not rung and whistle was not blown as train approached crossing, as required by Laws 1924, chapter 320 (Hemingway's Code 1927, section 7964), and whether defendant's negligence caused death, held for jury.

5. RAILROADS. Instruction based on prima-facie evidence statute held proper, though evidence disclosed facts surrounding striking of automobile by train (Hemingway's Code 1927, section 1717).

In action for damages for death of automobile passenger killed in collision with train at crossing, instruction based on prima-facie evidence statute (Code 1906, section 1985; Hemingway's Code 1927, section 1717), held properly given, even though evidence disclosed all facts and circumstances surrounding striking of automobile by defendant's engine.

6. NEGLIGENCE. Negligence of automobile driver could not be imputed to guest killed in collision with train.

Negligence of driver of automobile, over whom guest had no control, could not be imputed to guest who was killed when automobile was struck by train at crossing.

[149 Miss. 545] 7. RAILROADS. Instruction that guest in automobile must stop, look, and listen before going on railroad track held properly refused.

In action for damages for death of guest in automobile killed in collision with train at crossing, instruction that it was duty of guest to stop, look, and listen before going on railroad track held properly refused.

8. NEGLIGENCE. Guest in automobile is chargeable only with his own negligence in not remonstrating with driver against doing negligent act when danger is apparent to him.

Guest in automobile driven by another over whom he has no control is chargeable only with his own negligence in not remonstrating with driver against doing of negligent act when danger therefrom was or should have been apparent to him.

9. RAILROADS. It was automobile driver's duty to do whatever was necessary to ascertain whether train was approaching before driving on track.

It was duty of automobile driver to do whatever was reasonably necessary to ascertain whether train was approaching before driving on track at crossing.

10. NEGLIGENCE. Guest had right to depend on automobile driver to discharge his duty before driving on railroad track until it became apparent that driver would not do so.

Guest had right to depend on driver of automobile to discharge his duty to do whatever was reasonably necessary to ascertain whether train was approaching before driving on track unless and until it became or should have become apparent to him that driver would not do so.

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

[149 Miss. 546] Action by J. W. Lee, administrator of the estate of W. B. Pentecost, deceased, against the Columbus & Greenville Railroad Company. From the judgment, defendant appeals. Affirmed.

Reporter's Note: This cause was first pleaded to and affirmed by Division "A" without a written opinion. Thereafter a Suggestion of Error was filed and under Rule 34, Section 6 the judgment was set aside and the cause presented to the Court en Banc.

Affirmed.

Gardner, Odom & Gardner, for appellant.

The stalling of the car was the proximate cause of this accident. L. & N. R. Co. v. Harrison (Fla.), 83 So. 89; Barrett v. U. S. R. R. Administration, 194 N.W. 223.

Mr. Steen, witness for plaintiff, contends that the whistle was not blown, and the bell rung, as the statute requires. It is sufficient to say that the overwhelming testimony in this case shows that the signals were given. Mr. Forbes, who testified for plaintiff says that the whistle was blown. Seaboard Air Line Ry. Co. v. Myrick, 109 Fla. 193. Positive evidence that signals were given is held to overcome evidence that they were not heard by other witnesses. But if one who was intently listening for, and expecting the signals, and could have heard them, testified that he did not hear them, his evidence may be of equal weight with the evidence that they were given, and it is for the jury to determine from the evidence. 3 Elliott on Railroads, 1653; 71 Am. Dec. 236; 18 P. 305; 82 N.E. 986; 44 P. 607; 30 N. J. L. 188; 63 A. 856; 63 N.Y. 622; 21 N.W. 241; Artz v. Railroad Co., 34 Ia. 154; Gunby v. Colo. & S. R. R. Co., 235 P. 556; 78 A. 1048; 69 A. 1087; 61 A. 903; 90 N.E. 1116. The fact that the witness did not hear crossing signals will not avail, as against the positive testimony that the [149 Miss. 547] signals were given, and especially so where the witness was paying no attention to ascertain if any were given. 100 P. 1016; 266 S.W. 644.

The failure on the part of the plaintiff to call the witness Mike Buford, who was evidently friendly to plaintiff, is a circumstance from which the inference should be drawn that his testimony, if introduced, would have been unfriendly and hostile to the plaintiff. 1 Wigmore on Evidence, section 285. It cannot be said that Mr. Buford's testimony would likely be prejudiced against the plaintiff on account of their relations. 4 Wigmore on Evidence, 2273; 22 C. J. 115; Anderson v. Cumberland Tel. & Tel. Co., 86 Miss. 341; Bunckley v. Jones, 79 Miss. 1; Calhoun v. Burnett, 40 Miss. 599. 10 R. C. L. 887 lays down the rule that the failure to produce a witness available to both parties should operate against the party who has the best opportunity to know whether his testimony would be favorable. Ann. Cas. 1914A, 916. Defendant could not afford to call Buford as a witness, because to have done so would have made Buford its witness, and precluded appellant from impeaching him, had Buford made any damaging admissions after the accident with reference to what was said and done by him and the deceased, with reference to the approaching train, which caused the accident. Western & Atlantic Railroad Co. v. Morrison, 66 A. S. R. 173.

The instruction given for plaintiff should not have been given and was error, because this court has held in the Fondren case, 110 So. 365, that, "where testimony fully explains how injury occurred, it is error to give an instruction under prima-facie statute." It cannot be denied that the testimony does not show how the accident happened. It was peculiarly unfortunate that this instruction under the prima-facie statute was given in this case. There was no reason whatever to invoke the prima-facie statute, as the testimony fully explained all the facts connected with the accident, and besides, plaintiff's [149 Miss. 548] testimony shows that there was a flagrant, wilful and we might say almost premeditated violation of the stop, look and listen statute. According to plaintiff's own testimony the unfortunate accident was occasioned directly and proximately by his act in stopping the car on the track just about the time the train reached the crossing. For the court to tell the jury that, in the face of this testimony, the railroad company should be burdened with the presumption of negligence, was certainly the acme of injustice. There was not a single element of doubt as to how the accident occurred, no conflict or contradiction nor was there anything connected with the evidence that would authorize the giving of this instruction. Where the testimony shows how the accident happened, no instruction on the prima-facie statute should be given. G. M. & N. v. Brown, 102 So. 855; Davis v. Temple, 91 So. 691; G. M. & N. R. R. Co. v. Arrington, 107 So. 378; Davis, Director-General v. Elzey, 88 So. 630; Y. & M. V. R. R. Co. v. McCullers, 89 So. 158. The giving of this instruction was error, and that this case should be reversed and judgment entered here for appellant.

The court gave three other...

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41 practice notes
  • Miss. Cent. R. Co. v. Smith, 31225
    • United States
    • Mississippi Supreme Court
    • April 30, 1934
    ...case make the occasion a joint adventure, as they inferentially attempted to do in the trial of the case. Columbus & G. R. Co. v. Lee, 115 So. 782, 149 Miss. 543; 2 Blashfield on Automobile Law 1149. The verdict was far below the amount which might have been given and yet sustained. The jur......
  • Columbus & G. Ry. Co. v. Robinson, 34134
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...negative testimony, whereas, the testimony presented by this record is positive, or affirmative testimony. C. & G. R. R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Y. & M. V. R. Co. v. Beasley et al., 158 Miss. 370, 130 So. 499. Under the testimony of Hester, the jury was fully warranted in de......
  • Mississippi Cent. R. Co. v. Roberts, 31580
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...Fuller v. R. R., 100 Miss. 705; R. R. v. Lucken, 102 So. 393, 137 Miss. 572; R. R. v. Hudson, 107 So. 369, 142 Miss. 542; R. R. v. Lee, 115 So. 782, 149 Miss. 543; R. R. v. Simmons, 117 So. 345; R. R. v. Simmons, 121 So. 145; R. R. v. Beasley, 130 So. 499, 158 Miss. 370; Young v. R. R., 147......
  • Mississippi Cent. R. Co. v. Aultman, 31636
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...not see the train. But if he had seen it, his negligence in failing to stop cannot be imputed to deceased. [173 Miss. 635] C. & G. v. Lee, 115 So. 782; G. & S. I. v. Carlson, 102 So. 168; Grantham v. G. & S. I., 103 So. 131; Y. & M. V. v. Beasley, 130 So. 499. Bus driver's knowledge of appr......
  • Request a trial to view additional results
41 cases
  • Miss. Cent. R. Co. v. Smith, 31225
    • United States
    • Mississippi Supreme Court
    • April 30, 1934
    ...case make the occasion a joint adventure, as they inferentially attempted to do in the trial of the case. Columbus & G. R. Co. v. Lee, 115 So. 782, 149 Miss. 543; 2 Blashfield on Automobile Law 1149. The verdict was far below the amount which might have been given and yet sustained. The jur......
  • Columbus & G. Ry. Co. v. Robinson, 34134
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...negative testimony, whereas, the testimony presented by this record is positive, or affirmative testimony. C. & G. R. R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Y. & M. V. R. Co. v. Beasley et al., 158 Miss. 370, 130 So. 499. Under the testimony of Hester, the jury was fully warranted in de......
  • Mississippi Cent. R. Co. v. Roberts, 31580
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...Fuller v. R. R., 100 Miss. 705; R. R. v. Lucken, 102 So. 393, 137 Miss. 572; R. R. v. Hudson, 107 So. 369, 142 Miss. 542; R. R. v. Lee, 115 So. 782, 149 Miss. 543; R. R. v. Simmons, 117 So. 345; R. R. v. Simmons, 121 So. 145; R. R. v. Beasley, 130 So. 499, 158 Miss. 370; Young v. R. R., 147......
  • Mississippi Cent. R. Co. v. Aultman, 31636
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...not see the train. But if he had seen it, his negligence in failing to stop cannot be imputed to deceased. [173 Miss. 635] C. & G. v. Lee, 115 So. 782; G. & S. I. v. Carlson, 102 So. 168; Grantham v. G. & S. I., 103 So. 131; Y. & M. V. v. Beasley, 130 So. 499. Bus driver's knowledge of appr......
  • Request a trial to view additional results

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