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

• Decision Date: 03 October 1927
• Docket Number: 26570
• Citation: 148 Miss. 456,114 So. 35
• Parties: GULF, M. & N. R. CO. v. SEYMOUR. [*]
• Court: Mississippi Supreme Court

114 So. 35

148 Miss. 456

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

No. 26570

Supreme Court of Mississippi

October 3, 1927

(Division B.)

1. APPEAL AND ERROR. Trial. On conflicting evidence, questions of veracity and credibility are for jury only; on conflicting evidence, appellate court will not disturb jury's finding except for misdirection as to law.

Where there is a conflict in the evidence, questions of veracity and credibility are for the jury alone, and the court will not disturb the Jury's finding unless the jury is misdirected as to the law.

2 RAILROADS. Railroad company failing to give statutory warning is guilty of negligence.

It is the duty of a railroad company, in approaching a highway crossing, to give the warning required by statute, and, if it fails to do so, it is guilty of negligence.

3. NEGLIGENCE. Where circumstances show both parties guilty of negligence, verdict proportioning damages for injury at railroad crossing will not be disturbed.

Where in a case of injury to a truck by the railroad locomotive at a public highway crossing, under circumstances showing both parties to be guilty of negligence, and the damage done to the truck amounts to one thousand seven hundred and fifty dollars and the jury returns a verdict for eight hundred fifty dollars, the court will not disturb the action of the jury in proportioning the damages under the statute.

Division B

APPEAL from circuit court of Lauderdale county.

HON. R M. BOURDEAUX, Judge.

Action by R. H. Seymour against the Gulf, Mobile & Northern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

Welch & Cooper, for appellant.

Appellee for recovery relies upon the failure of appellant to give the crossing signals and upon the failure of the engineer to use ordinary care to prevent the accident after the peril was discovered. Appellant filed the general issue with notice thereunder to the effect that the accident resulted from the driver's negligence and not the negligence of the appellant.

I. Appellant at the close of the whole case requested a peremptory instruction. It was refused. This action of the court was erroneous and for two reasons: (a) On the undisputed evidence here, the driver after seeing the train decided to take a chance. The bell and whistle statute had no effect. And the peremptory instruction for this reason should have been granted. (b) Again the burden of complaint is the failure to give the crossing signals. Is there any real conflict? The engineer swears he blew the whistle and that the fireman was ringing the bell. The fireman swears to the same thing. McCarty swears to the fact that the whistle was blown. He did not remember hearing the bell, but would not swear that it was not ringing.

The driver says the whistle was not blown nor was the bell rung. His helper swears he "aint heard it" and that it was not rung. Here we have the engine crew, men in position to know, swearing that the signals were given. We have, too, a witness to the accident who was neither on the truck nor the train. He says the crossing signal was given. Two men on the truck say it was not. They were together. It is urged that this is a conflict. We say not, because Gordon, the driver, in speaking of the noise of his truck and the presence of the sun said: "I could not hear anything and could not see anything." Sound is detected by the ear. No sound is heard. We say there is no sound. What value has testimony to the effect that a whistle was blown when the same testimony shows that other noises prevented hearing? We say none.

II. We assign as error the action of the court in submitting to the jury the question of whether the engineer exercised reasonable care to stop the train when the peril of the driver and truck was discovered. Under the facts in this case there could be no such issue.

This court adheres to the rule that the engineer has the right to assume that one approaching a track will not enter upon the track until it reasonably appears to the contrary. Under the circumstances here any reasonable man would have assumed that the driver was not going on the track.

It may be said that the engineer was impeached. It is very true that appellee swore that the engineer told him that he thought the truck was over and did not put on the brakes. The engineer denies this emphatically. This is not evidence that he did put on the brakes. It is only impeaching evidence. But the fireman said the same thing as the engineer did and he is not impeached. In other words, we have the same situation as was presented in G. M. & N. R. R. Co. v. Jones, 102 So. 385, 137 Miss. 631. There the engineer was impeached but the fireman who testified to the same effect was not.

We submit, therefore, that the court by granting the instructions submitted to the jury an issue that did not exist. It is a false issue. And this action was error.

III. We say, too, that the damages are excessive. Assume for the sake of argument that appellant was guilty of gross negligence. This court and the lower court fixed appellee's negligence in the same degree. Our statute fixes the proportion. And with this assumption, appellant's liability should not be more than half the damage. And this according to appellee's own testimony would have been one-half of eleven hundred twenty dollars or five hundred sixty dollars. The verdict of the jury was eight hundred seventy-five dollars.

But appellant, if guilty of any negligence at all, was certainly not guilty of gross negligence. And this renders the verdict more excessive.

Reily & Parker and S. A. Witherspoon, for appellee.

The jury had a situation to pass upon where the driver of the truck had to look into the blinding rays of the setting sun in order to look toward the train. The driver of the truck was busily engaged in dodging traffic. The engineer had nothing to do but to be careful not to plunge into this stream of traffic at a dangerous rate of speed. The engineer had nothing to absorb his attention, while the driver of the truck with its heavy load of furniture, was as busy as he could be in attempting to get over the road with his load. A situation like this would appeal to the reason of any man and cause him to see that the driver of the truck was at a disadvantage in the...