Gulf, M. & N. R. R. Co. v. Hardy

• Decision Date: 11 June 1928
• Docket Number: 27016
• Citation: 117 So. 536,151 Miss. 131
• Parties: GULF, M. & N. R. R. CO. v. HARDY. [*]
• Court: Mississippi Supreme Court

117 So. 536

151 Miss. 131

GULF, M. & N. R. R. CO. v. HARDY. ^[*]

No. 27016

Supreme Court of Mississippi

June 11, 1928

(In Banc.)

1. APPEAL AND ERROR. Opinion on former appeal that defendant was not entitled to directed verdict held controlling, where evidence on second trial was the same.

Where evidence on second trial, in so far as defendant's right to directed verdict was affected thereby, was same as that on first, opinion on former appeal that defendant was not entitled to directed verdict was controlling.

2 RAILROADS. Railroad owed duty to one unloading car, injured by frightened horses, not to run train in unusual manner calculated to frighten animals.

Only duty which railroad's servants in charge of train owed to plaintiff unloading car on side track, who was injured when horses became frightened, before discovering his peril, was not to run train in such an unusual manner or to cause it to make such unnecessary noise as would be calculated to frighten animals near track.

3. RAILROADS. Whether railroad operated train in manner to frighten horses of plaintiff unloading car on side track held not for jury, under evidence.

Whether railroad company operated train in unusual manner or caused it to make unnecessary noise calculated to frighten horses of plaintiff unloading car on side track, who was injured when horses became frightened held not for jury, under evidence.

4 RAILROADS. Statute regarding sounding whistle or bell at crossing held inapplicable, where plaintiff was injured by frightened team while unloading railroad car (Hemingway's Code 1927, section 7964).

Section 4045, Code 1906, now section 1, chapter 320, Laws 1924 (Hemingway's Code 1927, section 7964), requiring railroad's servants to ring bell or sound whistle as train approaches crossing, held inapplicable, where plaintiff was injured when team became frightened while he was unloading railroad car on side track, since statute was enacted for benefit of travelers on highway or street.

ETHRIDGE and ANDERSON, JJ., dissenting.

HON. G E. WILSON, Judge.

APPEAL from circuit court of Neshoba county, HON. G. E. WILSON Judge.

Action by Tom Hardy, by next friend, against the Gulf, Mobile & Northern Railroad Company. From the judgment, defendant appeals. Reversed and remanded.

Reversed and remanded.

Flowers, Brown & Hester, for appellant.

The court erred in not granting the peremptory instruction requested by the defendant. This record affirmatively shows that in the operation of the train at the time of the accident no unnecessary noises were made; nothing out of the ordinary was done; and that the train came into the station at Philadelphia, just as it always came in. There was no blowing of the whistle or anything else done or permitted to be done by the engineer which might be calculated to frighten the team. The engine and equipment were in proper condition; properly handled by competent employees. There is absolutely no showing made that the employees of the defendant failed to exercise care to prevent the injury to the plaintiff after discovering him in his position of peril. The witnesses all agree that the engineer could not see the team until his engine passed the north end of the depot. The north end of the depot was only eighty-five yards, according to the plaintiff's testimony, from the point where the team was standing. As stated in the opinion of the court in McCerrin v. Ry. Co., 72 Miss. 1013, 18 So. 420: "But if the defendant, by its servants, did nothing unusual, and nothing which 'common prudence would condemn as being calculated to frighten teams passing that way' it is not liable." Y. & M. V. R. Co. v. Day, 120 Miss. 296, 82 So. 149. The six-mile statute does not apply and consequently no negligence can be predicated upon the fact that the train might have been running at slightly more than this rate of speed when it passed the depot. This statute does not apply because there was no injury "inflicted by the running of the train" within the meaning of this statute. I. C. R. Co. v. Weathersby, 63 Miss. 581; G. M. & N. R. Co. v. Hardy, 137 Miss. 608, 102 So. 66 (former decision in this case).

"Negligence, alleged to have resulted in frightening an animal, cannot be predicated upon the operation of a train unless in so doing unnecessary noises were made, and the noises, or the movement of the train, were recklessly or wantonly made or done after discovery of peril, or were made or done with intention of frightening the animal in question." C. of G. R. Co. v. Fuller, 164 Ala. 196, 51 So. 309; R. R. Co. v. Stedham, 101 Ala. 376, 13 So. 553; L. & N. v. Schmidt, 134 Ind. 16, 33 N.E. 774. The law on this subject is clearly stated in 1 R. C. L. 1207, sec. 144. "The plaintiff was not struck at a crossing and it is only when the injury occurs at a crossing that this statute (the statute requiring the blowing of the whistle or the ringing of the bell) may be invoked." Y. & M. V. R. Co. v. Cox, 132 Miss. 564, 97 So. 7. A railroad's duty to keep a lookout is confined to public crossings. Suppose for instance this had been a through train if you please, one not scheduled to stop at Philadelphia, would it be true that the engineer would have been under the duty to bring his train down under easy control and that a constant and careful lookout be kept ahead? And this rule, if it be the law, would not only apply to Philadelphia but to the numerous small sidings and stations along the line where carload shipments are placed for unloading and where teams frequently are driven for the purpose of hauling freight to and from such cars. The rule is clearly stated in 1 R. C. L. 1211, sec. 148.

And in passing upon this proposition we direct the court's attention to the fact that by instruction No. 3, given for the plaintiff, the jury was instructed that "it was the duty of the defendant, and those operating trains for the defendant, to anticipate the presence of persons and teams at the car, etc." This is not only an erroneous announcement of the law, but taken in connection with the court's refusal to grant the defendant's instructions on this point glaringly brings out the error complained of. It is an open manifestation of the erroneous theory upon which the plaintiff was permitted to proceed. It was manifest error to refuse the defendant's sixth and seventh instructions and this error was intensified by the granting of this instruction for the plaintiff.

Reily & Parker, for appellee.

Was it error to refuse the appellant's request for a peremptory instruction? The doctrine of the "last clear chance" as a basis of liability is too well established in Mississippi to require a statement of the basis on which it rests, but when one person sees and appreciates the peril of another, it immediately becomes his duty to exercise care in order to prevent injury, but the appellant in this case insists that the extent of this duty is limited to refraining from doing anything unusual or unnecessary in the operation of its train. Insofar as this contention is concerned, the case of Windham v. M. & O. R. R. Co., 145 Miss. 696, 110 So. 441, is sufficient answer thereto. I. C. R. R. Co. v. Person, 65 Miss. 319, 3 So. 375. It will be seen from this case that liability may be created under some circumstances when the train is making no unusual noise or doing nothing that is unnecessary in the operation of a train. It is not a sufficient answer when injury has been done which might have been averted, if the peril of the party injured was seen, by the exercise of care. To say that we only continued to do the things that were usual and necessary in the operation of a train and while the accident might have been averted by ceasing to so do, there can be no liability, the law is the other way. Fuller v. I. C. R. R. Co., 100 Miss. 705, 56 So. 783; St. L. & S. F. R. R. Co. v. Nixon & Phillips, 141 Miss. 677, 105 So. 478.

In addition to the ruling being right on the question of liability under the third count of the declaration we insist that the ruling of the court was correct under the ruling of the "law of the case," the facts in the first appeal being substantially the same as the facts in this appeal so far as the third count is concerned, we insist that the doctrine known as the "law of the case" is conclusive on that point. Johnson v. Machinery Co., 104 Miss. 217, 61 So. 178; Cochran v. Lattimer, 111 Miss. 192, 71 So. 316; Supreme Lodge, K. of P. v. Hines, 109 Miss. 500, 68 So. 485; Brewer v. Browning, 115 Miss. 358, 76 So. 267.

Under the law as we understand it a railroad company owes the duty to a party unloading freight from its cars by permission to use reasonable care to protect them against injury. A very extended and valuable note on this question is found in 31 L. R. A. (N. S.) 960. It cannot be argued that the appellee was not an invitee and under the law of Mississippi an invitee is entitled to reasonable care to be exercised in his behalf. Belzoni Hardwood Lbr. Co. v. Mrs. Nellie Langford, 127 Miss. 234, 89 So. 919. And a recognition and application of the above rule when applied to a case involving the same rights enjoyed by the appellee in this case is found in Natchez & S. Ry. Co. v. Guice, 136 Miss. 307, 101 So. 439; I. C. R. R. Co. v. Dillom, 111 Miss. 520, 71 So. 809; I. C. R. R. Co. v. Mann, 137 Miss. 819, 106 So. 7.

SMITH, C. J. ETHRIDGE, J., ANDERSON, J., dissenting.

OPINION

SMITH, C. J.

This is the second appearance of this case in this court. The suit is for the recovery of damages for a personal injury sustained by the appellee for which he claims the appellant is responsible.

The original declaration contained four counts, all of them setting forth in substance that the appellant owns and operates a railroad running...