Gulf, M. & N. R. Co. v. Brown, 24519

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtETHRIDGE, J.
Citation102 So. 855,138 Miss. 39
PartiesGULF, M. & N. R. CO. v. BROWN. [*]
Decision Date23 February 1925
Docket Number24519

102 So. 855

138 Miss. 39

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

No. 24519

Supreme Court of Mississippi

February 23, 1925


Division B

1. RAILROADS. Instruction on burden of proof held error.

In a suit for damages for a personal injury inflicted by the running of a railroad train at a public crossing where the facts are all in evidence, it is error to instruct the jury that "the circumstances [138 Miss. 40] of the accident must be clearly shown and the facts so proven must exonerate the company from blame; otherwise the railroad company is not relieved from liability." Where the facts are all in evidence, the jury must determine the question of liability from the facts, and such facts must show negligence on the part of the railroad company.

2. RAILROADS. Instruction on care required of passenger in automobile approaching public railroad crossing held error.

In a suit for personal injuries growing out of a collision between an automobile in which the plaintiff was riding and a train at a public crossing, it is error to instruct the jury that the plaintiff might rely upon her husband to manage and control the automobile, and that she was not required by law to stop before going upon the railroad track. A passenger riding in an automobile approaching a public railroad crossing must exercise reasonable care, according to the circumstances existing at the time, for her own safety and do what a person of reasonable caution and prudence would do under the circumstances.

HON. G. E. WILSON, Judge.

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

Action by Mrs. Bonnie Jean Brown against the Gulf, Mobile & Northern Railroad Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Judgment reversed and case remanded.

Flowers & Brown, Byrd & Byrd and C. L. Hester, for appellant.

As to the rights and duties of travelers at highway railroad crossings, see Memphis, etc., R. R. Co. v. Mitchell, 52 Miss. 808; V. & M. R. R. Co. v. Alexander, 62 Miss. 496; Memphis C. R. Co. v. Jobe, 69 Miss. 452, 10 So. 672; A. & V. R. R. Co. v. Davis, 69 Miss. 444, 13 So. 693; Jobe v. Memphis C. R. Co., 15 So. 129; Winterton v. I. C. R. R. Co., 73 Miss. 831, 20 So. 157; I. C. R. R. Co. v. McLeod, 78 Miss. 334, 29 So. 76, 52 L. R. A. 594; Dean v. Railroad Co., 129 Pa. 514, 18 A. 718, 6 L. R. A. 143; [138 Miss. 41] Smith v. Railroad Co., 87 Me. 350, 32 A. 967; Murdock v. Railroad Co., 77 Miss. 487, 20 So. 25; I. C. R. R. Co. v. Bethea, 88 Miss. 117, 40 So. 813; Hopson v. K. C. M. & B., 87 Miss. 789, 40 So. 872; Y. & M. V. R. R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Davis v. McCullers, 126 Miss. 521, 89 So. 158; Gulf & Ship Island R. R. Co. v. Adkindson, 117 Miss. 118, 77 So. 954; Schofield v. C. M. & St. P. R. R. Co., 114 U.S. 615, 29 L.Ed. 224, 225; Improvement Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403; Railroad Co. v. Houston, 24 L.Ed. 542, 95 U.S. 697; M. P. R. Co. v. Freeman, 174 U.S. 739, 43 L.Ed. 1014; Elliott v. C. M. & St. P. R. R. Co., 150 U.S. 245, 37 L.Ed. 1068, 1071.

One who knowingly goes upon a railroad track at a highway crossing where trains are accustomed to pass without taking any precautions to ascertain whether a train is approaching and is struck by a train is guilty of negligence, in the absence of invitation or misleading conditions created by the railroad company.

While the test is whether the traveler behaved as a reasonably prudent and careful person would have behaved, it has been adjudged that to go upon a railroad crossing without taking any precautions whatsoever to ascertain whether a train is dangerously near is gross negligence, as our court has affirmed, is negligence as the supreme court of the United States has held, the latter court having had no occasion to classify negligence into degrees. A reasonably prudent man approaching a highway crossing will look for trains. He knows trains are continually being run over the crossing.

If a locomotive is nearby, in plain view, and one says he looked in the direction of it from him and was looking for it or to see if it was there but did not see it, then one or two conclusions must be adopted: (1) he swears falsely when he says he looked or, (2) he saw it and chose his course in the face of the known conditions. Wharton's Negligence. It is just as much the traveler's duty to be careful after he discovers the conditions as it [138 Miss. 42] is to discover them. And it is just as much his duty to ascertain the conditions as it is to protect himself after he is fully informed. If he does not look, he is negligent, if he does see but does not heed, he is negligent. The same observations may be made as to the duty to listen.

The traveler can always know whether conditions are favorable or fatal to seeing or hearing. He can know whether either is sufficient or whether both are sufficient. If the track can be seen in both directions his eyes will tell him; if he cannot see far enough to find out whether a train is dangerously near he must listen. If conditions are such as to make it impossible for him to see or hear he should stop.

Unless there is some immediate misleading circumstance or condition no instance can be conceived where one would not be guilty of negligence in going upon a crossing in front of an approaching train. The peculiar conditions that may remove the conclusive imputation of negligence are illustrated by the Crominarity case, 86 Miss. 464, 38 So. 633, and by the Hopson case, supra.

As to the gross negligence of H. N. Brown, the driver of the car, measured by the established rules his conduct makes him clearly guilty of the grossest negligence. The track was straight, was elevated on a dump from four to fifteen feet high; was entirely familiar to him; he had been crossing it for eighteen years and owned the property adjacent to the crossing; for months he had been accustomed to cross it twice a day; there was no obstruction after a point fifty to seventy-five feet from the track, was passed. He says it was raining, but he saw the car that just previously passed over the track when he was at least one hundred fifty feet from it. His witness, Kirby, saw the train three-quarters of a mile away. He went up a slight incline to get on the track and his car was moving slowly, under control. He could have stopped within five or six feet. When he was within ten feet of the track the train was necessarily not more than forty feet away, standing fourteen feet high and [138 Miss. 43] emitting smoke and steam. He says he looked but did not see it, listened but did not hear it. If he looked up the track north, he necessarily saw it because it was there. If he could see a Ford car one hundred fifty feet away and Kirby and Watkins could see the train three-quarters of a mile away, he could see a locomotive fifty feet. There is no escape from the conclusion either (1) that Brown saw the locomotive and tried to beat it across or, (2) that he did not look or listen or take any precautions.

As to the precautions taken by Mrs. Brown, the plaintiff, as the car approached the track, she was on the front seat, by the side of her husband, at his right. The train approached from her side. The wind was blowing the rain against the back of the car. The boys were trying to put a coat over a window in the back where the isinglass was broken out. The side curtain at Mrs. Brown's right was loose at the top, leaving an opening through which she could see. She knew the car was approaching the crossing. The plaintiff admits that she rode on the crossing without taking any precautions whatsoever for her own safety, when she was aware that she was approaching the crossing and when she was in a position in the car to see clearly, in fact, in better position than anybody else.

As to the peculiar character of plaintiff's contributory negligence, it is a thing to be kept in view that the mistake was not in the operation of the car. What they needed to save them was information. The information was staring them in the face but they would not see it. What plaintiff failed to do was to look. If she had looked she would have seen. The object was there in plain view, close at hand. If she had seen it she would with the swiftness of thought have told her husband. He would not have refused to stop. He drove his car against the side of the front end of the locomotive. The hood stuck under the draw-head from the side. If the plaintiff had warned her driver when the car was six feet from the track she would have saved herself and family. If either [138 Miss. 44] had looked all would have been saved. But neither looked. They moved as the blind move. Here was a negligent omission without which the injury would not have occurred.

As to the duty of a guest riding in a private vehicle to exercise care for her own safety, whatever it may be, if she has any duty whatever, it was not performed by the plaintiff here. It is not claimed in the declaration that she did anything at all. On the witness stand she admitted that she did nothing at all. Courts have differed as to the kind and degree of care and caution that should be exercised by one riding in a private conveyance driven by another who is not an agent or servant of the person who conduct is in question. But very few have gone to the extreme of saying that such person may close eyes and ears and take no thought for her own safety when she is in position to see and hear and is acquainted with the location and conscious of the approach to a position of peril.

An English court spoke in Thorogood v. Bryan, and said that passengers in a vehicle were in a way identified with the driver. This decision was criticized and later overruled. That case represented an effort to find a way to impute to the passenger the negligence of the driver. It was never adopted in this country. But the courts have recognized here that there is necessarily something...

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33 practice notes
  • Columbus & G. Ry. Co. v. Robinson, 34134
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...Co. v. Buford, 150 Miss. 832, 116 So. 817; Y. & M. V. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; G. M. & N. R. Co. v. Brown, 138 Miss. 39. The instruction should have been modified to the extent of making Robert Robinson accountable for the way the truck was being driven to the e......
  • Mississippi Cent. R. Co. v. Roberts, 31580
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...of over thirty years. R. R. Co. v. McLeod, 78 Miss. 334, 29 So. 76; R. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; R. R. Co. v. Brown, 138 Miss. 39, 102 So. 855; R. R. Co. v. Buford, 150 Miss. 832, 116 So. 817. Since the train was in plain view, then the failure to give signals was not a ......
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. Gulf, M. & N. R. Co. v. Brown, 138 Miss. 39, 66, 102 So. 855 et seq.; Columbus & G. Ry. Co. v. Fond-ren, 145 Miss. 679, 110 So. 365. That of Georgia as construed in this case creat......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. Gulf. M. & N. R. Co. v. Brown, 138 Miss. 39, 66, 102 So. 855 et seq.; Columbus & G. Ry. Co. v. Fondren, 145 Miss. 679, 110 So. 365. That of Georgia as construed in this case create......
  • Request a trial to view additional results
33 cases
  • Columbus & G. Ry. Co. v. Robinson, 34134
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...& G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817; Y. & M. V. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; G. M. & N. R. Co. v. Brown, 138 Miss. 39. The instruction should have been modified to the extent of making Robert Robinson accountable for the way the truck was being driven to the ......
  • Mississippi Cent. R. Co. v. Roberts, 31580
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ...of over thirty years. R. R. Co. v. McLeod, 78 Miss. 334, 29 So. 76; R. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; R. R. Co. v. Brown, 138 Miss. 39, 102 So. 855; R. R. Co. v. Buford, 150 Miss. 832, 116 So. 817. Since the train was in plain view, then the failure to give signals was not a ......
  • Key v. Carolina & N. W. Ry. Co, No. 13112.
    • United States
    • United States State Supreme Court of South Carolina
    • April 9, 1931
    ...created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. Gulf, M. & N. R. Co. v. Brown, 138 Miss. 39, 66, 102 So. 855 et seq.; Columbus & G. Ry. Co. v. Fond-ren, 145 Miss. 679, 110 So. 365. That of Georgia as construed in this case creates an in......
  • Ford v. Atl. Coast Line R. Co, No. 13405.
    • United States
    • South Carolina Supreme Court
    • May 11, 1932
    ...created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. Gulf. M. & N. R. Co. v. Brown, 138 Miss. 39, 66, 102 So. 855 et seq.; Columbus & G. Ry. Co. v. Fondren, 145 Miss. 679, 110 So. 365. That of Georgia as construed in this case creates an inf......
  • Request a trial to view additional results

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