Gulf & S. I. R. Co. v. Simmons

• Decision Date: 28 May 1928
• Docket Number: 26846
• Citation: 150 Miss. 506,117 So. 345
• Parties: GULF & S. I. R. CO. v. SIMMONS et al. [*]
• Court: Mississippi Supreme Court

117 So. 345

150 Miss. 506

GULF & S. I. R. CO. v. SIMMONS et al. ^[*]

No. 26846

Supreme Court of Mississippi

May 28, 1928

Division A

1 RAILBOADS. Railroad's negligence in failing to give statutory signals before reaching crossing and striking automobile held for jury (Hemingway's Code 1927, section 7964).

In suit for alleged wrongful injury and death as a result of collision between automobile and train at railroad crossing evidence as to negligence of railroad in failing to blow whistle or ring bell continuously for three hundred yards before the crossing was reached as required by Hemingway's Code 1927, section 7964 (Code 1906, section 4045), held sufficient to require submission of question to jury.

2. RAILROADS. That giving of statutory crossing signals would not have prevented automobile being blocked on track did not relieve railroad of necessity of giving signals (Hemingway's Code 1927, section 7964).

The fact that giving of crossing signals, required of railroad under Hemingway's Code 1927, section 7964 (Code 1906 section 4045), would not have prevented automobile from becoming blocked on crossing, did not relieve railroad of necessity of giving such signals as a warning of approach of train, nor relieve it of liability for failure to do so since travelers on a highway have right to insist that signals be given, not only that they may keep off track, but that they may extricate themselves and their property from position of danger before arrival of train.

3. RAILROADS. Instruction relative to railroad's duty to give crossing signals authorizing recovery on negligent failure to give crossing signals, held not misleading (Hemingway's Code 1927, section 7964).

Instruction, in suit for injuries and death resulting in collision between automobile and train at railroad crossing, relative to duty imposed on railroad to give crossing signals as provided by Hemingway's Code 1927, section 7964 (Code 1906, section 4045), and authorizing recovery if railroad negligently failed to cause bell to be rung and failed to cause whistle to be blown, held not misleading for failure to require bell to be rung or whistle to be blown in the alternative, since use of word "or" would have required railroad to give both signals in order to free itself from fault.

4. RAILROADS. Instruction predicating railroad's liability solely on failure to maintain proper grade within right of way held erroneous under evidence (Hemingway's Code 1927, section 7903).

Instruction, in suit against railroad for injury and death resulting in collision between automobile and train at railroad crossing, predicating liability of railroad solely upon negligent failure to construct and maintain necessary and proper grades within limits of its right of way pursuant to Hemingway's Code 1927, section 7903 (Code 1906, section 4053), held erroneous in view of evidence that grade was properly constructed so as to conform to and connect with grades of highway as maintained by county authorities.

5. RAILROADS. Railroad has duty only of making necessary and easy grades over roadbed to permit safe and convenient passage by persons using reasonable care (Hemingway's Code 1927, section 7903).

Under Hemingway's Code 1927, section 7903 (Code 1906, section 4053), requiring railroad when crossing highway to make proper and easy grades so that railroad may be conveniently crossed, and to keep such crossings in good order, it is not duty of railroad to make such grades as will make crossing of its roadbed safe and easy under any and all circumstances, but only to make such necessary and easy grades as will permit safe and convenient passage over roadbed by persons using reasonable care.

6. TRIAL. Instruction that contributory negligence of person injured in collision between automobile and train would not bar recovery held not erroneous, when considered with instructions as a whole (Hemingway's Code 1927, section 516).

In suit for injury and death resulting from collision between railroad and automobile at railroad crossing, instruction to effect that contributory negligence of person injured would not bar a recovery held not erroneous, since it did not preclude jury from diminishing the damages in proportion to amount of negligence attributable to deceased as authorized by other instructions thereon, which when read together announced entire statutory law as found in Hemingway's Code 1927, section 516 (Laws 1920, chapter 312).

7. DEATH. Instruction authorizing consideration of mental and physical pain between time of injury and death in assessing damages held erroneous under evidence.

Instruction in suit for injury and death resulting in collision between automobile and train at railroad crossing authorizing jury to consider in assessing damages mental and physical pain suffered by deceased between time of injury and death held erroneous under evidence that injured person was not conscious or in condition to suffer pain after receiving injury until time of death.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.

Suit by Mrs. Lucille Simmons and another against the Gulf & Ship Island Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Judgment reversed and cause remanded.

R. V. Fletcher and T. J. Wills, for appellant.

The peremptory instruction should have been granted. The testimony shows without conflict that the train was running at its usual and customary rate of speed. The charge of negligence as to the excessive speed was abandoned and not submitted to the jury. We are, therefore, left but two questions of negligence for consideration. 1. Was the railroad company guilty of negligence in failing to construct and maintain a proper highway crossing, and if it was, did that contribute to the injury and death of the deceased? 2. Did it fail to blow the whistle or ring the bell for the distance required by statute, and if it did, did its failure so to do contribute to the injury and death of the deceased? Appellant had no power or authority to locate the highway over its track. It had no discretion as to the point where the highway should cross its track. The board of supervisors is given full and complete jurisdiction and control over highways and bridges by section 170 of the Constitution of 1890. Sections 8340 and 8341 of Hemingway's Code, provided how public roads may be laid out, altered and changed. This constitutional power granted to the board of supervisors is paramount and absolute. The legislature is without authority to change that supervision and control except as provided for in the Constitution. State ex rel. Knox, Attorney-General, v. Board of Supervisors, Grenada County, 141 Miss. 701, 105 So. 541. No negligence therefore, can be imputed to the railroad company because of the location of the highway and of the crossing over its track. It could not have prevented even by an injunction the board of supervisors from laying out this highway across its tracks at the point where it was constructed. Sec. 7903, Hem. Code 1927, provides: "Where a railroad is constructed so as to cross a highway, and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highway, so that the railroad may be conveniently crossed, and to keep such crossing in good order." . . .

This court said in Ry. Co. v. Sneed, 84 Miss. 252, 36 So 261: "The grade required depends, of course, upon the extent to which it has been found necessary to raise or lower the natural surface of the ground to make the grade accord with the established grade of the railroad. Whether such grades are to be slight or great varies at each crossing with the natural obstacle which may be presented by the particular location." All that the railroad company is required to do is to make proper and easy grades in the highway so that the railroad may be conveniently crossed. It is not its duty to construct it so that it will be easy to cross or easily crossed under any and all circumstances. It is required to make proper and easy grades in the highway in order that the railroad may be conveniently crossed so as to be reasonably safe for a person using ordinary and reasonable care in the use thereof. Taking the testimony introduced by the plaintiff for the purpose of showing the condition of this grade we find that going ten feet from the railroad track towards Columbia the rise is nine inches. The next ten feet is eight inches. The next or third ten feet, nine inches, the next or fourth ten feet out from the track is eight and one-half inches, and the last ten feet out to the edge of the right of way is nine and one-half inches. The road is thus made to join the grade of the highway as constructed by the county fifty feet from the track at a rise of forty-four inches--very little grade indeed as compared with the grade on some of the highways throughout the state. Complaint is made that the highway was narrow, and too narrow for cars to conveniently pass each other on the right of way. It is conclusively shown that the highway was only fourteen feet in width, and that the crossing itself was nineteen feet, eleven inches wide. Conceding, however, that it was narrow, the traveled portion of the road was in good condition. The crossing itself was in as good condition as any other crossing on the road. The railroad was not required to construct or maintain the highway other than that portion which might be interfered with by the construction of its roadbed. That very question was under consideration in the Sneed case, supra, and this court held that the railroad was not required to construct or maintain the highway even on its right of way;...