Hines v. McCullers

Citation83 So. 734,121 Miss. 666
Decision Date08 March 1920
Docket Number20861
CourtUnited States State Supreme Court of Mississippi
PartiesHINES, DIRECTOR GENERAL OF RAILROADS, v. MCCULLERS

March 1920

1 ACTION. Action for death of wife and daughter in same accident may be joined.

Causes of action in favor of the same plaintiff and against the same defendant, of the same nature, and subject to the same character of defense and judgment may be joined in one declaration, even though the pleas thereto may be different.

2 SAME.

The rights of action by the same plaintiff for the benefit of the same parties to recover damages for the death of plaintiff's wife and daughter in the same accident, under Laws 1914, chapter 214 (Hemingway's Code, section 501) are of the same nature and subject to the same character of defense and Judgment and may be joined in one declaration.

3. DEATH. Contributory negligence of beneficiary does not bar recovery.

An action under Laws 1914, chapter 214 (Hemingway's Code, sec. 501, permitting recovery for death in cases where the injured person could have maintained an action, is not defeated by the contributory negligence of one of the beneficiaries, even to the extent of that beneficiary's interest.

4. CONSTITUTIONAL LAW. Contributory negligence rule may be changed by statute.

Contributory negligence as a defense in an action for a tort is grounded on the common-law rule that the law will not apportion the consequences of concurring acts of negligence. This rule may be modified or abolished by statute.

5. RAILROADS. Trial instructions on negligence erroneous under evidence as to negligence and causes of injury.

An instruction as to the duty of a railroad company to maintain a highway crossing over its tracks in good condition was erroneous where the evidence did not show negligence in the maintainance of the crossing and did not contribute to the accident.

6. RAILROADS. Trial. Instructions on duty to maintain warning sign erroneous under declaration and evidence as to cause of injury.

In an action for death of a passenger in an automobile at a railroad crossing, an instruction that the failure to maintain the sign required by Code 1906, section 4050 (Hemingway's Code, section 6674), was negligence, was erroneous, where such negligence was not alleged in the declaration, and the driver of the automobile testified that she knew of the crossing and looked for an approaching train.

7. TRIAL. Instructions should confine negligence authorizing recovery to negligence alleged.

Where the declaration alleged negligence in the maintainance of the crossing and the operation of the train, instructions allowing recovery, if the railroad was negligent in any respect that approximately caused the accident were erroneous.

8. TRIAL. Instructions confining negligence to that alleged does not cure instructions permitting recovery for negligence not contributory to injury.

Giving a requested instruction to find for defendant unless the jury found it negligent for failing to ring the bell did not cure the error of instructions permitting recovery for any negligence contributing to the injury, especially those permitting recovery for acts of negligence, which the evidence showed did not contribute to the accident.

9. RAILROADS. Prima-facie statute does not relieve plaintiff of final burden.

Laws 1912, chapter 215, Hemingway's Code, section 1645), making accidents caused by running trains prima facie evidence of negligence, merely places on the railroad company the burden of introducing evidence as to the operation of its trains and showing the circumstances surrounding the infliction of the injury and after such evidence has been introduced, the burden then remains with the plaintiff to establish negligence by a preponderance of the evidence.

HON. W. A. ALCORN, JR., Judge.

APPEAL from the circuit court of Coahoma county, HON. W. A. ALCORN, JR., Judge.

Suit by J. F. McCullers against Walker D. Hines as Director General of Railroads. From a judgment for the plaintiff, defendant appeals.

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

Judgment reversed and remanded.

D. A. Scott, Earl Brewer, A. W. Shands, Chas. N. Burch and H. D. Minor, for appellant.

Maynard & Fitzgerald, J. W. Cutrer and Sam C. Cook, Jr., for appellee.

SMITH, C. J. COOK, J., dissents.

IN BANC

OPINION

SMITH, C. J.

This is an appeal from a judgment awarding the appellee damages for the death of two persons alleged to have been killed because of the negligence of the servants of the appellant. At Matson, Coahoma county, Miss., the track of the Yazoo & Mississippi Valley Railroad Company runs approximately north and south, and a public road runs parallel therewith on the west side thereof and crosses at right angles to the east side of the track one thousand six hundred and seventy-six feet north of Matson station. The distance from the railroad track to this public road on the west side thereof is from fifty-five to sixty-five feet, and at the crossing the railroad embankment is about five feet high. The view between the railroad track and the public road is unobstructed from the station to the crossing. On the afternoon of the 9th day of April, 1918, an automobile driven by Miss Beatrice McCullers was proceeding from Clarksdale over this public road to the McCullers residence, three or four miles north of Matson. In this automobile, in addition to Beatrice McCullers, were her mother, Mrs. McCullers, her sister, Francis McCullers, a Miss Stephens, and a negro nurse. As they were crossing the railroad track the automobile was struck by the engine of one of the appellant's passenger trains going north, and all of the occupants thereof except Beatrice were killed. The McCullers family consisted of John McCullers, the husband and father, Mrs. McCullers, the wife and mother, and three daughters, Beatrice, Sydney, and Francis. This action is prosecuted by Joan McCullers under chapter, 214, Laws of 1914 (Hemingway's Code, section 501), under which any damages he may recover will enure to the benefit of himself and his two children Beatrice and Sydney. The cause was submitted to a jury, which rendered a verdict in favor of the plaintiff for sixty thousand dollars, and there was a judgment accordingly.

The negligence with which the appellant is charged in the declaration is: First, in the maintenance of the crossing; and, second, in the operation of its train at the time of the accident. One of the appellant's contentions in the court below was that this road on which the deceased persons were traveling at the time they were killed was not a public one, but the evidence relative thereto was conflicting. The evidence with reference to the condition of the crossing was that it "had been washed off; the embankment on each side had been washed off right smart, and it was narrow, . . . it was a pretty steep grade, . . . and it would take pretty good speed to get up." Beatrice stated that "it was kind of steep, and the crossing was rough because it had been washed out along there; it had not been kept up any too particularly well; not any of the roads as far as that is concerned." And, on being asked whether the crossing was "kept up as well as the roads are," she replied, "No; and that is not saying very much, and the crossing is very narrow, and I had to put all of my time to handling the car, because it was very long and it was very heavy going up that curve, and it occupied all my time." According to the testimony of the appellant, which included several photographs of the crossing, the crossing was maintained in good condition. The engineer of the appellant's train testified that he was on the lookout when approaching the crossing, but did not see the automobile and was not aware of its presence until he felt the engine strike it. The engineer's seat is on the right side of the engine cab, and his view to the left is obstructed by the boiler of the engine to such an extent that he could not see the rail on his left for a distance of forty feet in front of the engine, and he could not see the point where the road turns to cross the track after he came within five hundred and twenty feet of the crossing.

The fireman was engaged in putting coal in the engine's furnace as the train approached the crossing, and did not see the automobile until after it was struck.

The whistle of the engine was blown just before the train reached Matson, which station the train passed without stopping, and the engineer and fireman testified (section 4045, Code of 1906; Hemingway's Code, section 6669), that the bell of the engine was rung continuously for more than three hundred yards as it approached the crossing, as did several other witnesses who saw the train as it passed. Other witnesses however, testified that they saw the train as it passed, but that the bell was not rung. The train when it passed Matson was about ten minutes late. Beatrice McCullers was skilled chauffeur thoroughly familiar with this public road, the railroad crossing, the time this train was scheduled to pass Matson, that it had not passed and was then overdue. The road was dusty, a wind was blowing, and all of the curtains of the automobile were up. Beatrice testified that when about two hundred and fifty or three hundred yards from the crossing she looked back down the track to see if the train was approaching, did not see it, that when she reached the crossing she drove on the track without stopping, and simply "glanced once just for a fraction of a minute" through the isinglass of the curtains down the track before driving upon it, but that the dust was very bad and obstructed her view so that she could not see very far, and that she did not see the train. The train was running about forty miles...

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