Hines v. Andrews

• Decision Date: 24 January 1921
• Docket Number: 21428
• Citation: 124 Miss. 292,86 So. 801
• Court: Mississippi Supreme Court
• Parties: HINES, DIRECTOR GENERAL OF RAILROADS, ET AL. v. ANDREWS

86 So. 801

124 Miss. 292

HINES, DIRECTOR GENERAL OF RAILROADS, ET AL. v. ANDREWS

No. 21428

Supreme Court of Mississippi

January 24, 1921

1 RAILROADS. Order of Railroad Commission regulating speed in municipality held not void for ambiguity.

Where the main street through a municipality runs just north of and contiguous to the railroad depot, and the only other street north of the depot is several hundred yards therefrom and is traveled very little, an order of the Railroad Commission providing that the roalroad company may run its trains through the municipality at a rate of speed exceeding six miles per hour, except "over street north of depot," is not void for ambiguity.

2 RAILROADS. Injury to animal by train running at lawful speed preventing stopping held not actionable.

In a suit against a railroad company for the negligent killing of a cow by its running train, where the evidence showed that the animal was killed within the corporate limits of a municipality, but at a place where, by reason of a valid order of the Railroad Commission, the railroad company might lawfully run its train at a rate of speed exceeding six miles per hour, and where the evidence both for plaintiff and defendant showed that after the cow ran onto the track in front of the train it was impossible to have stopped' the train and avoided striking her, a peremptory instruction for defendant should have been given.

HON. E D. DINKINS, Judge.

APPEAL from circuit court of Panola county, HON. E. D. DINKINS Judge.

Action by J. B. Andrews against Walker D. Hines, Director General of Railroads, and the Illinois Central Railroad Company. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Cause reversed.

Wells May & Sanders, for appellant.

Upon this appeal, the sole question for the consideration of the court, is whether the evidence clearly established without debate, that the cow was killed at a place where the law prohibited the running of the train at a greater rate of speed than six miles an hour, and if so, whether such rate of speed was without question, the proximate cause of the killing.

The order of the railroad commission regulating the speed of trains in municipalities, and of the town of Courtland, was offered in evidence and is sent up with the record, the said order reading as follows: "It is ordered, in pursuance of the authority conferred on this commission by paragraph 4043 of the Mississippi Code of 1906, that the Illinois Central Railroad Company and the Yazoo & Mississippi Valley Railroad Company may run their trains at a rate of speed exceeding six miles an hour within the limits of all municipalities hereinafter mentioned, except that the limits hereinafter particularly set forth with reference to each of the municipalities.

"Illinois Central Railroad Company, Louisiana Division:--Courtland: Over the street north of depot." The cow was not on either of said crossings when struck by the train, but was between the two.

Upon the evidence, the trial court instructed the jury peremptorily, to find for the plaintiff, apparently upon the mistaken theory that the train was running in excess of six miles an hour at a place where it was not permitted so to run, and that such rate of speed was the proximate cause of the injury. We submit that the court's action was manifestly wrong.

In the first place, the only place in the town of Courtland where the railroad company was not permitted to run its trains at a greater rate of speed than six miles an hour, was over the street north of the depot." We think it obvious that the order of the commission refers to the much used street, next north of the depot.

If it does not mean that, and is so ambiguous as to mean nothing, then the exception from the general language of the order, is void, and the railroad, under the general terms of the order, was allowed to run the train at a rate of speed exceeding six miles an hour throughout the entire limits of the municipality. Upon either theory, that is, whether the order excepts the crossing north of the depot and means the first crossing, or whether the exception means nothing because of the ambiguity, the train was not running at an unlawful speed.

Second, if the train had been running at an unlawful rate of speed, the plaintiff was not entitled to recover unless the evidence established the fact that the unlawful rate of speed was the proximate cause of the injury. If there was any evidence offered that left that question open as a disputed issue of fact, such question was one for the jury and not for the court. "It is not every injury inflicted by a railroad train while running through incorporated towns at more than six miles an hour, for which the company is liable. To render the company liable, the speed must be the proximate cause of the injury. Casual connections between excessive speed and the injury, must be shown." Ry. Co. v. Carter, 77 Miss. 516; see, also, Clisby v. R. R. Co., 78 Miss. 937; L. N. O. & T. R. R. Co. v. Carter, 5 So. 388.

If the testimony of the engineer was true, he was guilty of no negligence in operating the train and the killing of the cow was inevitable and unavoidable, because of her own reckless attempt to cross in front of the train. The testimony both for the plaintiff and the defendant, clearly shows that the accident was unavoidable, the plaintiff's witness Herron, and the defendant's engineer, testified that there was nothing the engineer could have done to avoid striking the cow when she turned her course back on the track, and it is perfectly clear that the six-mile statute had no application, because suspended by the...