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

• Decision Date: 11 March 1918
• Docket Number: 20021
• Citation: 117 Miss. 118,77 So. 954
• Parties: GULF & S. I. R. CO. v. ADKINSON
• Court: Mississippi Supreme Court

77 So. 954

117 Miss. 118

GULF & S. I. R. CO. v. ADKINSON

No. 20021

Supreme Court of Mississippi

March 11, 1918

Division A

APPEAL from the circuit court of Stone county, HON. JAS. H. NEVILLE Judge.

Suit by J. S. Adkinson against the Gulf & Ship Island Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

T. J Wills, for appellant.

This case presents to the court for consideration two questions of substantive law: First, is an old, abandoned road used principally as a farm road, over which members of the public occasionally pass for convenience, a highway within the contemplation of section 4045, of the Code of 1906. Second is a person approaching a railroad crossing from behind an obstruction that shuts him from view of an approaching train, charged with the duty of stopping, looking, or listening for an approaching train before going upon the railroad track.

Section 4045 of the Code of 1906, is in this language: "Every Railroad company shall cause each locomotive engine run by it to be provided with a bell of at least thirty pounds weight, or a steam whistle which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung, or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or street; and the bell shall be kept ringing, or the whistle shall be kept blowing, until the engine has stopped or crosses the highway or street."

A definition of the word highway as used in this section is essential to the proper decision of the first question presented by this case. This court stated in the case of Mobile & Ohio Railroad Company v. The State, 51 Miss. 137.

"Webster defines a street to be a city road, and a highway to be a public road, with respect to the use there can be no doubt that they are both public. But we think the statute, under consideration, means by the term highway, a public road in the country, and not a street in a city or town."

The court in this case was construing section 2424 of the Code of 1871, and this section is brought forward as section 4050 of the Code of 1906, and the word highway is used in the same sense there, as was the word used in section 2422 of the Code of 1871, which is brought forward and is section 4045 of the Code of 1906, under consideration.

Counsel for the plaintiff conceived the idea that there was a difference in the meaning of highway and public highway, and was able to convince the court that public roads were public highways, and that highway embraced not only public roads but private roads, over which members of the public occasionally passed. This is an erroneous interpretation.

"A highway is one to which all inhabitants of the state have a common and equal right to travel, and in which they have a common and at least general interest in keeping unobstructed." Talbott v. Richard, etc., R. Co., 31 Gratt. (Va.), 685. If a highway is a way opened to the public then it would be tautology to say a public highway, which would be equivalent to saying a public way. "Highway is a passage road, or street which every citizen has a right to use, and is therefore necessarily public." Walton v. St. Louis, etc., R. Co., 67 Mo. 56; Jenkins v. Chicago, etc., R. Co., 27 Mo.App. 578.

There are no highways in Mississippi except the roads in the country that are built and maintained by public authority, and streets, in cities and towns that are subject to municipal control. In England in the early history of the country the acts that gave to a way such dignity as to make it a highway was a special grant or decree of the king giving to the people a right of usage of the way over the land as against the feudal lords who held title as vassals of the king; or such usage of the way by the people, as a king's way, for a time beyond which the memory of men runneth not to the contrary; which implied a grant by the king. It was the sovereign decree, either actual or implied, giving the people a right of passage as against the owner of the land that changed the dignity of the way from a private way to that of a highway. In this state it is the assumption of control and maintenance by public authority that gives a way the dignity of a highway and not the amount of travel by the public over the way. As was stated in the case of In re City of New York, 31 N.E. 1043:

"It has been truly said it is not the amount of travel upon a highway which distinguishes it as public, instead of a private, road. A private road might have the larger amount. It is the right to travel upon it by all the world, and not the exercise of the right, which makes is a public highway."

Section 4045, requires the blowing of the whistle or the ringing of the bell in approaching crossings over any highway or street. Section 4049 prohibits the obstruction of travel upon highways for a longer period than five minutes and provides penalty for failure to observe this or either of the four preceding sections, which include section 4045. Did the legislature intend that the word highway here used should embrace roads and ways other than public roads? Would it be reasonable and right to inflict punishment, herein prescribed, on the Railroad company for failure to give the signal prescribed for highway or street crossing, for the failure to give the signal at private crossings or at crossings not public road crossings; and that too, when the Railroad company has as its guide, the definition of this court of the word highway, to mean a public road in the country? If the Railroad is not subject to this penalty except for its failure to give a signal at crossing of public roads, then it is not required to give the signal at any crossing except public road crossings.

The defendant was not required to give the crossing signal prescribed for highway crossings, even if the crossing had at one time been a public road crossing, since it is shown it had been discontinued as a public road. The plaintiff himself admits that it was not a public road, and if it had ever been, it had long since ceased to exist as such.

This court stated in Ill. C. R. R. v. Dillon, 71 So. 809, in speaking of the duty of the Railroad Company to sound alarm at crossings where a street had been discontinued, but continued to be used by one hundred and fifty or two hundred persons going to and from their work every morning and afternoon: "While the Railroad company was under so statutory duty to sound alarm for this crossing, at the same time it is our opinion that its common-law duty required the engineer to give a signal of his approach to this much used crossing, especially is this true when the engineer knew that he was approaching this crossing at a rapid rate of speed with a backing engine at the hour when between one hundred and fifty and two hundred people crossed it."

In the case of Y. & M. V. R. R. Co. v. Williams, 74 So. 835, this court states: "The injury occurred to Mr. Williams at what we term this 'north crossing.' This crossing was not considered a public crossing in the statutory sense that the railroad was required by law to give certain warnings, such as sounding the whistle or ringing the bell, upon approaching it, but it was a private or plantation crossing, which was frequently and habitually used by the public for several reasons, among which was the fact that the south public crossing over the railroad track just north of the depot was frequently and habitually blocked by trains standing on the tracks at that point, which made it necessary for persons desiring to cross the track to travel the east side plantation road north to the north crossing and there cross over to the west in order to get into the public road again on the west side.

This record presents quite a different case here. The train was approaching an abandoned road that is very infrequently used. There was no duty imposed upon it to sound an alarm and its knowledge of the infrequency of the use of the crossing relieved it of the duty of sounding an alarm. It could not see plaintiff as he approached the track. It was guilty of no negligence whatever, and the peremptory instruction asked should have been given.

It was the duty of the plaintiff before driving up to the defendant's railroad track to stop, look, or listen for an approaching train. It is possible that under certain conditions the exercise of reasonable care might not require a person to stop, look, or listen for an approaching train before going upon a railroad track. The duty in each instance, as a matter of law, must be determined from the circumstance surrounding the particular case. Y. & M. V. R. Co. v. Williams, supra. To same effect: Memphis, etc., R. Co. v. Mitchell, 52 Miss. 808; Jobe v. Memphis & C. R. Co., 71 Miss. 734; Y. & M. V. R. Co. v. Eakin, 79 Miss. 735; Hackney v. I. C. R. R. Co. 33 So. 723; Jackson v. Mobile, etc., R. Co., 89 Miss. 32; I. C. R. R. Co. v. Sumrall, 96 Miss. 860; M. C. R. Co. v. Hanna, 54 So. 74; L. & N. R. Co. v. Williams, 55 So. 218; N. C. & St. L. R. Co. v. Vincent, 66 So. 697; So. R. Co. v. Irwin, 68 So. 139; L. & N. R. Co. v. Turner, 68 So. 277.

The defendant requested the court to charge the jury that it was plaintiff's duty to have stopped, looked, or listened before going on the Railroad track, and his failure so to do was negligence. This the court refused to do. We submit that there is no liability on the defendant, and that the judgment should be reversed, and judgment entered here for defendant.

Mize & Mize and J. C. Ross, for appellee.

Appellant claims that the highway in the case and the crossing where appellee was hurt is shown by the evidence not to be...