Davis v. Temple

Citation91 So. 689,129 Miss. 6
Decision Date15 May 1922
Docket Number22531
CourtUnited States State Supreme Court of Mississippi
PartiesDAVIS, DIRECTOR GENERAL OF RAILROADS, v. TEMPLE

1 RAILROADS. Contributory negligence of automobile passenger held for jury.

Where the plaintiff and another, who were riding together in an automobile and were injured at a railroad crossing by a moving train, testify that they, slowed down looked, and listened for a train, and that there was no bell ringing or whistle, blowing, that they did not see the approaching train until it was within a few feet of them, and that their view was obstructed by a box car which they did not know was there until the happening of the accident, and also testify that the train was running at a greater rate of speed than allowed by law, the defendant is not entitled to a directed verdict, even though the witnesses for the defense are more numerous and it appeared probable that the plaintiff and witness could have seen the train and heard the bell if they had been giving attention. Conflicts in the evidence are for the decision of the jury.

2 RAILROADS. Instruction on statutory presumption of negligence held erroneous.

It is error to charge the jury for the plaintiff in a personal injury suit that the prima-facie statute, section 1985, Code of 1906. Hemingway's Code, section 1645, raises a presumption of negligence from the infliction of injury by a running train unless the facts surrounding the injury are proven, "and as proven must show that the defendant was guilty of no negligence in connection with the injury," and that if "the jury is left in doubt as to any of the facts and circumstances, or are unable from the evidence to determine with reasonable certainty all of the facts and circumstances attendant upon the injury either because of the lack of evidence, or the conflict in the evidence, then, and in that event, the presumption of negligence created by the statute prevails and the plaintiff is entitled to the benefit thereof." Where the facts are shown in evidence either by the plaintiff or the defendant, the liability must be determined from the facts. And if there is a conflict of evidence as to the facts so shown, the jury must decide the conflict as in other cases.

HON. W A. ALCORN, Judge.

APPEAL from circuit court of Coahoma county, HON. W. A. ALCORN, Judge.

Action by William A. Temple against James C. Davis, Director General of Railroads, etc. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Chas. N. Burch, H. D. Minor, F. H. Montgomery and J. W. Crisler, for appellant.

O. G. Johnston and J. C. Wilson, for appellee.

OPINION

ETHRIDGE, J.

Temple, the appellee, brought suit against the Director General of Railroads for an injury inflicted upon him on the 9th day of January, 1920. He alleges that on the evening in question he was riding in an automobile as the guest of one Baker, the owner of the automobile, in the city of Clarksdale, and going down Leflore avenue crossed several tracks of the Yazoo & Mississippi Valley Railroad Company, crossing the main tracks before crossing the one on which the injury occurred, known as the Tallahatchie Branch, the automobile was almost immediately struck by the train after it was seen by plaintiff, and the plaintiff was thrown from the automobile and one of his cervical vertebrae dislocated and fractured, resulting in much pain and suffering and in permanent injuries. The declaration alleges that the driver of the automobile was exercising due care; that the railroad train was being run at an unlawful and improper rate of speed in the city of Clarksdale; that the statutory signals for crossings were not given by those in charge of the train; that the passenger train which inflicted the injury was running late; that there was no flagman or watchman at the crossing, and no bell or other device for warning passengers about to cross at said place; that plaintiff was exercising due and reasonable caution; that he was thirty-one years of age, earning two hundred dollars per month, and that by reason of his injuries his earning capacity has been seriously impaired; that he incurred large bills for medical attention, hospital fees, etc.; and that he has suffered great pain and is permanently injured. The defendant filed a plea of the general issue and set up contributory negligence on the part of the plaintiff and on the part of the driver of the automobile.

The proof for the plaintiff shows that plaintiff and Baker were driving south on Leflore avenue, and when they approached the tracks of the railroad company the automobile was slowed down to a speed of eight or ten miles an hour, and that they looked and listened attentively and heard no bell or whistle and did not see the approach of the train until within ten or fifteen feet thereof, when the light from the headlight came around the box car on the side track, flashing upon them. Plaintiff's witnesses testified that the train was clearly exceeding the six miles an hour speed limit for municipalities. They also testified as to the cars on the side track, and that the plaintiff and the driver of the automobile neither knew that said box car was in said situation prior to entering upon the crossing. The train crew, consisting of the engineer, flagman, and porter, and some others, testified that the train was being operated at a rate of speed of from four to six miles per hour. The engineer did not see the plaintiff nor the automobile until his attention was called to it by the flagman. The flagman testified that the bell was ringing and the whistle had been blown for the station; that the bell had been ringing since the train entered the corporate limits. The engineer also testified that the engine was equipped with an automatic bell which was set to ringing when the train entered the corporate limits of Clarksdale, and that the engine was also equipped with an electric headlight. When the plaintiff and Baker crossed the main line, they testified that they looked and listened; that their faculties were normal, and that they heard no bell, whistle, or other noise of that character in the vicinity; that the distance between the main line track and the track where the injury was inflicted was about seventy feet. When the automobile was struck by the engine, it was turned around, and the plaintiff thrown...

To continue reading

Request your trial
31 cases
  • Columbus & Greenville R. Co. v. Lee
    • United States
    • Mississippi Supreme Court
    • February 27, 1928
    ...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. 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......
  • Gulf, M. & N. R. Co. v. Brown
    • United States
    • Mississippi Supreme Court
    • February 23, 1925
    ...for the plaintiff has been condemned in several recent decisions. It contains the element that condemned similar instructions in Davis v. Temple, 91 So. 689; Davis v. Elzey, 126 Miss. 789, 88 So. 630; v. McCullers, 121 Miss. 677; 83 So. 734; Railroad v. Daniell, 108 Miss. 369, 66 So. 730; R......
  • Mississippi Power & Light Co. v. Tripp
    • United States
    • Mississippi Supreme Court
    • October 10, 1938
    ... ... jury is fully discussed, as well as the power of this Court ... on appeal. Another case dealing with this question is ... Davis, Director General, etc., v. Temple, 129 Miss ... 6, 91 So. 689. What is said there, and in other cases, need ... not be repeated here. The jury ... ...
  • White's Lumber & Supply Co. v. Collins
    • United States
    • Mississippi Supreme Court
    • November 27, 1939
    ...Teche Lines, Inc., v. Bounds, 182 Miss. 638, 179 So. 747; Yazoo & M. V. R. Co. v. Lamensdorf et al., 180 Miss. 426, 177 So. 50, 178 So. 80; Davis, Director General of Railroads Temple, 129 Miss. 6, 91 So. 689; and Yazoo & M. V. R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274, and numerous othe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT