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

Decision Date01 February 1926
Docket Number24971
Citation107 So. 369,142 Miss. 542
PartiesGULF, M. & N. R. CO. v. HUDSON. [*]
CourtMississippi Supreme Court

Division A

Suggestion of Error Overruled March 15, 1926.

APPEAL from circuit court of Winston county, HON. T. L. LAMB, Judge.

Action by Mrs. Laura Hudson against the Gulf, Mobile & Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.


Flowers, Brown & Hester, E. M. Livingstone and W N. Key, for appellant.

I. The plaintiff's cause of action in this case is predicated upon the charges that railroad company, its servants and employees were negligent in that they failed to blow the whistle and ring the bell as the train approached the crossing where accident in question happened; in running the train at an unlawful rate of speed in an incorporated town although the language of the statute is not followed; also in operating said train at a high and excessive rate of speed to-wit, about thirty-five miles per hour; and in failing to keep a look out as the train approached the crossing on occasion of the accident.

The proposition as to negligence by the running of a train in excess of six miles per hour within an incorporated town has been eliminated by undisputed proof in the case that the Railroad Commission of Mississippi has prescribed limits within which the railroad company should be required to operate its trains at a speed not in excess of six miles per hour. The limitation fixed is a distance of one thousand feet, measured one-half each way from the station house, and this particular station, by actual measurement, is located sixteen hundred fifty feet south of the crossing where the accident occurred.

The plaintiff's proof on the question of high and excessive speed, failure to blow whistle and to ring bell, when casually considered would tend to show that her charges were true; but we think that, on a careful examination, it will appear to the court that the evidence is not reliable and does not establish the facts alleged.

We insist that the testimony, as given under the circumstances appearing in the case, is wholly unreliable and not sufficient to sustain a verdict against the defendant and certainly it is not sufficient to outweigh the overwhelming proof offered by the defendant.

The railroad company proved beyond question and beyond any reasonable doubt that the whistle was blown for the Main street crossing, the Brick yard crossing north of this, for the station board north of the Brick yard crossing, that the bell was ringing continuously from the time the train passed the station board until it stopped south of Main street crossing after the accident, that the train was drifting down grade, not working steam, and at a rate or speed not in excess of fifteen miles per hour. Not only have these facts been proved by unexceptional witnesses, they have been proved by a large number of witnesses, the majority of whom have no interest whatever in this lawsuit and are not in the employment or connected in any way with the plaintiff in error, Gulf, Mobile and Northern Railroad Company.

We insist that the plaintiff has not shown that she exercised the proper care and caution for her own safety, either by the allegations of her declaration or by the proof introduced by her upon the trial. We think that she has shown negligence in her conduct in approaching the crossing, in failing to caution or warn the driver of the automobile and in failing to allege and prove that the car was under control when it reached a point on the right-of-way where she could observe the approach of a train and protect herself from injury; and that these facts appear so strongly and show so plainly that her actions and omissions were the proximate cause of her injuries that she cannot recover under the facts proved.

The contributory negligence on the part of one riding in an automobile driven by another whose negligence was not imputable to the former has been held to be shown as a matter of law in numerous cases: Martin v. Pa. Ry. Co. (1919), 108 A. 631; Coby v. Q. O. & K. C, R. Co. (Mo. 1913), 161 S.W. 290; Lawrence v. D. & A. G. R. Co. (Utah, 1918), 174 P. 817; Blanchard v. M. C. R. Co. (Utah, 1917), 100 A. 666; La. Goy v. Director General (N. Y., 1921), 131 N.E. 886; Sadler v. N. P. R. Co. (Wash., 1922), 203 P. 10; Hoyle v. N. P. R. Co. (Wash., 1919), 178 P. 910; Morris v. C. B. & Q. Co. (Neb., 1917), 163 N.W. 799; M. K. & T. R. Co. v. Bussy (Kan., 1903), 71 P. 261; So. R. Co. v. Jones (Va., 1916), 88 S.E. 178; Brickell v. N. Y. C. & H. R. Co. (N. Y., 1890), 24 N.E. 449; Miller v. L. N. A. & C. R. Co. (Ind., 1891), 27 N.E. 339. In this last case the plaintiff Miller was a woman and the driver was her husband. The same is true in Fogg v. N. Y. N. H. & R. R. Co. (Mass., 1916), 111 N.E. 960. See also on the general proposition: Bush v. N. P. R. Co., 64 P. 624, 62 Kan. 709; Kirby v. K. C., etc. R. Co., 186 P. 744; Pigeon v. Mass., etc., Street Ry. Co. (Mass., 1918), 119 N.E. 762; Leapard v. K. C. R. Co. (Mo., 1919), 214 S.W. 286; Carden v. Chicago R. Co., 210 Ill.App. 155; Dummer v. Milwaukee, etc., R. Co. (Wis., 1901), 84 N.W. 853; Miller v. St. L., etc., R. Co., (Ark., 1918), 206 S.W. 329; Brommer v. Pa. R. Co. (C. C. A. 3rd Civ.), 179 F. 577, 29 L. R. A. (N. S.) 924; C. T. S. L. C. R. Co. v. Howard (Ind.), L. R. A. 593.

II. We question the correctness of the court's action in allowing and permitting the plaintiff to invoke the benefit of the prima-facie statute in this case. The question was very recently under consideration in Gulf, Mobile & Northern R. R. Co. v. Brown, 138 Miss. 39, 102 So. 855.

III. The court erred in excluding the evidence of B. B. Davis and T. C. Boyles as to the statements made by Mr. Dempsey, the driver of the car, immediately after the accident and also in excluding evidence offered to be given by the witnesses C. L. Griffin, J. O. Bennet, S. J. Adams and I. C. Hensley, who were also offered to prove statements made by the said Dempsey immediately after the accident occurred in explanation of how it occurred, this evidence being offered as a part of the res gestae. We insist that this evidence was competent. 22 C. J., Res Gestae, p. 443.

The notes sustaining the law as enumerated in Corpus Juris are voluminous and it is not practicable to copy citations here, but there is one note on p. 458, vol. 22, that is worthy of consideration. "The reason for the rule is that 'to exclude such evidence would in many cases defeat the accomplishment of justice by excluding evidence of the most trustworthy character.' 'Louisville, etc., R. Co. v. Buck, 116 Ind. 566, 19 N.E. 453, 9 A. S. R. 883, 2 L. R. A. 520 (quoting Leach v. Oregon Short Line R. Co., 29 Utah 285, 81 P. 90, 110 A. S. R. 708).'"

"The time elapsed within which these statements may be proved varies from a few minutes to an hour." 22 C. J. 462-465.

This case should be reversed.

Reilly & Parker, for appellee.

I. One of the reasons assigned for a peremptory instruction is the failure of the appellee to allege or prove the exercise of ordinary care both on her part and on the part of the driver of the automobile--in other words, to negative contributory negligence. We do not think that this is required. M. & O. R. R. Co. v. Campbell, 75 So. 555; G. & S. I. R. R. Co. v. Saucier, 104 So. 180.

II. But the appellant contends that the appellee made no case for the jury. This occurrence is so shocking in its consequences that it may not be passed as commonplace and such as may be expected in the ordinary affairs of life. Every collision at a public highway crossing approaching that conflict between public rights and individual user challenges the attention of all who are interested in public safety. There is no natural condition calling for or requiring such results. A train is permitted to pass over a public highway without any effort to stop, while a traveler thereon is being injured by such passing train. It is daytime, the sun is shining and the weather is fair, and people are being killed and injured. There is wrong somewhere. One or both of these parties were negligent. The negligence of one, or the concurring negligence of both caused the injury. The appellant cannot maintain its claim for a peremptory instruction unless the railroad was free from negligence contributing to the injury. The railroad cannot be free from negligence, unless the negligence of the driver of the automobile was the sole and only cause of the injury. A. & V. Ry. Co. v. Davis, 13 So. 693; G. & S. I. R. R. Co. v. Boone. 82 So 334; Bonds v. M. & O. R. R. Co., 88. So. 161.

Under the testimony of the appellee, the liability in this case was for the jury and the appellant was not entitled to a peremptory instruction. Under the theory of the appellant, the facts surrounding the injury are left to conjecture, and the statute would fix liability.

III. The instruction refused by the court for the appellant, wherein it asked that the jury be limited to the consideration of the question as to whether or not the bell was rung or the whistle sounded, was refused. This instruction ignored every other question of negligence. Under this instruction there can be no liability if the bell was sounded or the whistle blown as provided by statute.

IV. Complaint is made that the appellee obtained an instruction on the prima-facie statute. The statute was involved in the trial and the evidence was such that the court should not have instructed the jury that it did not apply. But whether that be true or not, we had the right to obtain the instruction. I. C. R. R. Co. v. Gray, 79 So. 812.

The instruction granted in the case of G. M. & N. R. R. Co v. Brown, 102 So. 855, was condemned for the same reason that similar instructions...

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