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

• Decision Date: 02 January 1933
• Docket Number: 30311
• Citation: 145 So. 110,164 Miss. 380
• Parties: GULF, M. & N. R. Co. v. KENNARD
• Court: Mississippi Supreme Court

145 So. 110

164 Miss. 380

GULF, M. & N. R. Co. v. KENNARD

No. 30311

Supreme Court of Mississippi

January 2, 1933

Division B

1 RAILROADS.

Railroad had right to occupy crossing with cars for its legitimate business purposes.

2 RAILROADS.

In absence of peculiar environment, railroad employees are justified in believing travelers in automobiles properly lighted and driven will observe cars on crossing at night in time to avoid collision.

3 RAILROADS. Evidence of negligence in leaving unlighted freight train on crossing held not to present jury question in action for injuries to automobile guest.

The facts disclosed that freight train had blocked the crossing for less than five minutes when automobile driven by injured guest's father collided therewith, and that at time of collision conductor was on his way with lantern, but had not reached crossing which, for considerable distance, was unobscured.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Greene county, HON. J. D. FATHEREE, Judge.

Action by Letha Kennard against the Gulf, Mobile & Northern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

C. C. Smith, of Richton, and Welch & Cooper, of Laurel, for appellant.

The appellant had the right to occupy the crossing for its legitimate business purposes.

Gulf, M. & N. R. R. Co. v. Holifield, 120 So. 750, 152 Miss. 674; Section 6128, Code of 1930; Southern R. Co. v. Floyd, 55 So. 287, 99 Miss. 287.

The crew of that train had the right to assume, even if the surroundings had been such as to make vision impossible, that the car and its occupants would obey the law and stop.

Section 6124, Code of 1930.

The trainmen in the case at bar were justified in acting upon the assumption that an automobile would not be unnecessarily driven into the side of their train.

Gage v. R. R. Co., 77 N.H. 289, 90. A. 855, L.R.A. 1915A 363.

In order to charge the defendant with the negligence claimed it must be held that the jury would be justified in finding that men of ordinary prudence and foresight, in charge of the train at the time, would have anticipated that such an accident might happen in these circumstances. We think that reasonable men could come to only one conclusion. Defendant's servants would be amply justified in acting upon the belief that travellers in automobiles properly lighted and traveling at reasonable speed, would observe the cars upon the crossing, in time to avoid a collision.

Gilman v. Central Vermont R. Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102.

Currie & Currie, of Hattiesburg, and J. M. Byrd, of Leakesville, for appellee.

In an action of damages for negligence, where the defendant's freedom from culpability is not so clear as to leave no room for differences of opinion, the question of negligence is for the jury, and it is error to instruct for defendant.

Nesbit v. Greenville, 69 Miss. 22.

So many questions are integrated usually into the solution of the question of negligence--it is so necessary to carefully examine all of the circumstances making up the situation in each case--that it must be a rare case of negligence which the court should take from a jury.

Bell v. Southern Railroad Company, 87 Miss. 234, 30 So. 821.

These close questions of negligence vel non can only be determined safely and righteously by the juries of the country. A standard of conduct constituting negligence, or due care in the numerous affairs of life, cannot be safely established from the bench; but such questions must be left to the logic and reasoning of the laymen who compose the juries, taken from all the walks of life, and who are familiar with ordinary human affairs and general conditions of every day life.

Y. & M. V. R. R. Co. v. Williams, 74 So. 835.

All questions of negligence and contributory negligence shall be for the jury to determine.

Section 512, Code of 1930.

Where there is substantial evidence tending to establish plaintiff's case, verdict may not be directed for defendant.

Haynes-Walker Lumber Company v. Henkins, 141. Miss. 55, 105 So. 858.

The evidence for the appellee shows that the car across the highway in this crossing was shrouded in utter darkness, without evidence of life and without any lights, and with no person stationed there to give warning of its presence. It was a dangerous obstruction in a public highway, and it was gross negligence to leave this car standing dead across this public highway in utter darkness, at a place where the appellant knew and was bound to know that it would be impossible for traveler in the highway to discover it until he was within a very few feet of it and within very dangerous proximity of it.

Owing to one of the curves within close proximity of the railroad track itself in this crossing, the headlights of an automobile would shine on a gin house or building north of the crossing, and the lights would fall upon the crossing until the automobile had reached a place within twenty or twenty-five feet of the crossing, and owing to these curves in the highway it was impossible to see the crossing or a car or a train standing on the track across the highway until the automobile was within very close proximity to the crossing within dangerous proximity thereto, so close that it would be impossible to avert collision therewith.

The appellant had the right to occupy the crossing for its legitimate...