Hancock v. Illinois Central R. Co.

• Decision Date: 24 November 1930
• Docket Number: 28882
• Citation: 158 Miss. 668,131 So. 83
• Court: Mississippi Supreme Court
• Parties: HANCOCK v. ILLINOIS CENTRAL R. CO

131 So. 83

158 Miss. 668

HANCOCK v. ILLINOIS CENTRAL R. CO

No. 28882

Supreme Court of Mississippi

November 24, 1930

Division A

1 PLEADING.

Permitting railroad, sued for death of motorist, to file special plea during trial setting forth restriction on speed limit area within municipality, held not error.

2 RAILROADS.

Statute did not protect motorist struck by swift train partly within municipality's speed limit area (Hemingway's Code 1927, section 7894).

3 RAILROADS.

Railroad must take such reasonable precautions for safety of travelers at crossings as ordinary prudence would indicate.

4 RAILROADS.

In absence of statute or ordinance restricting train speed, no rate of speed at crossings is negligence per se.

5. RAILROADS.

Where train striking automobile at crossing was exceeding fifty miles per hour, but sounded all necessary alarms, and motorist had unobstructed view up track for one thousand eight hundred feet from stop sign, railroad was not liable.

HON. GREEK L. RICE, Judge.

APPEAL from circuit court of De Soto county, HON. GREEK L. RICE, Judge.

Action by Roy M. Hancock against the Illinois Central Railroad-Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Jere Horne, of Memphis, Tenn., and Logan & Barbee, of Hernando, for appellant.

On reaching a frequently used crossing it is the duty of the servants of a railroad company to use reasonable care and diligence in maintaining a proper lookout and to approach the crossing at a reasonable rate of speed and in this case these were questions of fact to be decided by the jury under the conflicting testimony.

Hines v. Moore, 124 Miss. 500.

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

Bell v. Railroad Co., 30 So. 821.

The court erred in permitting the defendants to file, after the plaintiff had closed his case, a special plea providing for the introduction of evidence going to show that railroad commission of Mississippi had modified the six-mile statute at Coldwater by creating a zone, in lieu of the limits, but within the corporate limits of the municipality, and in permitting evidence to be introduced, over objection of plaintiff in support of said plea.

The six-mile statute does not apply only to accidents occurring within the limits of municipal corporations, or zones fixed by the Mississippi railroad commission, but also applies to cases where the entire zone, was covered by the moving train at the moment of collision, and, therefore, at the time, in the active violation of the statute.

Railroad v. Butler, 93 Miss. 554.

The decedent had a right to presume that when the train reached the north line of the zone, at the north end of the station, it would have, by that time, reduced its speed to six miles per hour in obedience to the statute.

Hassie v. Ala. Cent. Railroad Co., 78 Miss. 413.

If the engineer and fireman, or either of them, saw the decedent and appreciated her position of peril before the accident, or they, or either of them, could have seen her in that place of danger had they looked, and then failed to take any measures to avoid killing her, they were guilty of gross and wilful negligence.

Jamison v. I. C. Railway Co., 63 Miss. 33; A. & V. Ry. Co. v. Kelly, 126 Miss. 276; Yellow Pine Trustees v. Holly, 142 Miss. 24.

It is the duty of a railroad company in establishing the rate of speed at which its trains may be run, to exercise due regard not only to the safety of passengers, but also to all persons in the exercise of ordinary care traveling on the highway across its tracks, the rate of speed to be used in the particular case depending upon the nature of the crossing and other circumstances of the case, and the question whether or not the railroad company has exercised reasonable care and prudence in this respect being one of fact to be determined by the jury from all the circumstances existing at the time. In running through cities and towns, where the presence of persons on the track in the street or at crossings must be anticipated, the speed of the train should be moderated to a reasonable degree, so as to have it under reasonable control.

33 Cyc., page 971.

At ordinary crossings it is the duty of the railroad company to keep a lookout, to run at a reasonable rate of speed, and to give timely warning of the approach of engines or trains. The lookout answers one purpose, the warning another, and the control of the speed yet another; and it often happens that the observance of either without the observance of all will not afford the required or indeed any protection. The lookout is primarily to enable the trainmen to control the movement of the train when they discover danger, while the warning is to give the traveler notice to keep out of the way and the control of the speed is designed to make both the lookout and the warning effective.

22 R. C. L., page 989.

Where leave of the court is necessary to authorize the filing of a plea, the record should show the order granting it; the recital of the fact in the body of the plea amounts to no more than an averment of the pleader.

Pool v. Hill, 44 Miss. 306.

It was the duty of the engineer and fireman to use reasonable care and diligence in maintaining a lookout for people using the crossing, and whether or not they exercised this care and diligence, under the circumstances and whether the fireman discovered the approaching automobile and appreciated the impending danger as soon as he should have done so by the exercise of reasonable care and diligence and exercised this diligence in notifying the engineer, were all questions of fact to be decided by the jury, and not of law for the court.

R. R. Co. v. McGee, 117 Miss. 370, 78 So. 296; R. R. Co. v. Williams, 114 Miss. 236, 74 So. 835; R. R. Co. v. Dillon et al., 111 Miss. 520, 71 So. 809; Power Co. v. McEachern, 109 Miss. 380, 69 So. 185; Hines v. Moore, 124 Miss. 510, 87 So. 1.

May, Sanders, McLaurin & Byrd, of Jackson, and Chas. N. Burch, of Memphis, Tenn., for appellee.

The speed statute, section 4043, Code of 1906, Hemingway's Code, section 6667, prescribes the speed limit "within" cities, towns and villages, not without. And its object is to prevent injuries to persons and property situated "within" the limits of municipalities, and not persons and property situated without such limits. The statute has no application when the injury was inflicted outside of the municipal limits, although the train, just before inflicting the injury, had been running within such limits at greater speed than the statutory rate.

Hines, Director-General v. Moore, 124 Miss. 500, 87 So. 1; Railroad Co. v. Butler, 93 Miss. 654, 46 So. 558; N. O. & N. E. R. R. Co. v. Martin, 126 Miss. 765.

A railroad company is only required to exercise reasonable care to avoid injury to persons on or near its tracks after discovering their position of peril; it is not required to do everything possible to avoid injury; the standard of action of the average man under the circumstances is the criterion; that in the operation of its train it does not have to check their speed until there is a reasonable apprehension that such person will go on the track, and that if the evidence shows without conflict that the injury complained of could not have been avoided by the exercise of reasonable care, then it is the duty of the court to instruct the jury to find for the railroad company.

Hines, Dir.-Gen. v. Andrews, 124 Miss. 292, 86 So. 801; Hines, Dir.-Gen. v. Thompson, 123 Miss. 634, 86 So. 450; Railroad Co. v. Morrison, 107 Miss. 300, 65 So. 275; Railroad Co. v. Jones, 111 Miss. 159, 71 So. 309; Railroad Co. v. Frazier, 104 Miss. 372, 61 So. 547; Railroad Co. v. Wright, 78 Miss. 125, 28 So. 806; Railroad Co. v. Whittington, 74 Miss. 410, 21 So. 249; Railroad Co. v. Bourgeoise, 66 Miss. 3, 5 So. 629, 14 Am. St. Rep. 534; Railroad Co. v. Brumfield, 64 Miss. 637, 1 So. 905; N. O. & N. E. R. R. Co. v. Martin, 126 Miss. 765.

There being no dispute about the facts in this case and the evidence showing conclusively that the defendants were free of negligence, and that the sole proximate cause of the injury was the negligence of the deceased, it was, of course, proper for the court to give the peremptory instruction for the defendants.

In the absence of a statute or of a duly authorized municipal ordinance placing a restriction upon the rate of speed at which railroad trains may be run, no rate of speed at crossings is negligence per se. The very purpose of locomotion by steam upon railways is the accomplishment of a high rate of...