Hopson v. Kansas City, M. & B. R. Co.

Decision Date21 May 1906
Citation87 Miss. 789,40 So. 872
PartiesMARY HOPSON v. KANSAS CITY, MEMPHIS & BIRMINGHAM RAILROAD COMPANY
CourtMississippi Supreme Court

FROM the circuit court of Marshall county, HON. JAMES B. BOOTHE Judge.

Mrs Hopson, the appellant, was the plaintiff in the court below the railroad company, the appellee, was the defendant there. From a judgment in defendant's favor, predicated of a peremptory instruction, the plaintiff appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Smith &amp Totten, for appellant.

As a matter of law, was the action of the deceased in going upon the railroad crossing, without first having "stopped and looked and listened," such contributory negligence as forbids recovery in this case? We say not. This court does not follow the rigid rule on this subject announced by some other courts. What constitutes negligence depends always upon the surrounding facts and circumstances. Louisville, etc., R. R. Co. v. Crominarity, 86 Miss. 464 (S.C., 38 So. 633).

We respectfully invite the attention of the court to the facts that the deceased had just unloaded his staves at the stave pile near the south end of the sidetrack--a distance of about one hundred yards south of the depot, and about one hundred and fifty yards south of the crossing, the place of the accident; that at this stave pile he had a view down the railroad track, south, a distance of about three hundred yards; that, after leaving the stave pile on his return trip, the main line of the railroad was put out of his view by the trees on the side of the railroad, the Callahan store, and the cars banked on the sidetrack. So it appears that from the stave pile to the railroad crossing it was but a short drive of one hundred and fifty yards, and the deceased had just left this stave pile--where he could see for a distance of three hundred yards down the railroad, in the direction from which the train came that struck him--and no train was then in sight, no whistle had been blown at the milepost. He drove from the stave pile in a trot and reached the crossing, where he could not have seen the train if he had attempted to look. So to have stopped to look, under these circumstances, would have been absolutely useless, as the proof shows conclusively; for, on account of the obstructions mentioned, he could not have seen the train from this crossing until he had actually gotten upon the main line of the railroad.

The time consumed by deceased in coming from the stave pile to the crossing could have been, of course, at the most only a few seconds; so the fact is, it had been only a few moments since he had been at a place where he had a view of the railroad, and could listen as well as see, and had not seen or heard the approach of any train. With the present knowledge of these facts and the situation, and in view of all the surrounding circumstances, can it be said that the fact of deceased's not stopping and looking and listening at the crossing, where he could not possibly see, was negligence? To hold such would be to place upon the deceased, we submit, a higher degree of care than any court has heretofore placed upon a person similarly situated. Why, only a few moments had elapsed since he had had a view down the railroad track, and he neither saw nor heard a train; is it strange, then, that he did not expect to come, in so short a time, in contact with a train coming from that direction? Could he not reasonably act upon his knowledge of the situation of only a moment since? Could he imagine that the train would slip up on him in this remarkably short period? And we submit that if the crew in charge of this train had observed the statutory requirements regarding speed and the giving of proper signals on approaching crossings, the death for which damages are here claimed would not have occurred. But the facts are: This train --a passenger train--was approaching this crossing at the rate of forty miles per hour (covering a distance of one mile in one and one-half minutes), yet giving no signals of its approach; that it came--silently, as it were--immediately out of space, emerging as a veritable cannon ball, and ran against deceased when he had not the least idea of either its approach or presence, but, on the contrary, taking into account his former knowledge of the situation, had every reason to believe that he was perfectly safe from possible or probable harm so far as the railroad was concerned--that the blow fell upon him like a stroke of lightning from a cloudless sky. And thus the unlawful speed of the train, the absence of the signals required by law of trains running through incorporated towns and approaching public crossings, and the obstruction to the view caused by the banking of the cars on the sidetrack became the proximate cause of the injury and constitute the grossest negligence on the part of the railroad company. It was to prevent accidents of this character that the statute prohibiting trains from running through incorporated towns over six miles per hour, under penalty, was enacted. Vicksburg, etc., Railroad Co. v. McGowan, 62 Miss. 698; Stevens v. Railroad Co., 81 Miss. 207 (S.C., 32 So. 311); Railroad Co. v. Carter, 77 Miss. 517 (S.C., 27 So. 993).

The deceased came to his death by an injury inflicted by the running of the train. This is a prima facie proof of negligence; and to overcome this statutory presumption, it devolves upon the appellee to exculpate itself by establishing such circumstances as would excuse it from liability. This it has not done. The statutory requirement cannot be overthrown by conjecture; and if the proof leaves the circumstances of the accident doubtful, the company is not relieved from liability, and the presumption controls. New Orleans, etc., R. R. Co. v. Brooks, 85 Miss. 269 (S.C., 38 So. 40).

The gross negligence of the railroad company in running a train through an incorporated town, and over a public street and the most frequented street in the town, at the high rate of speed of forty miles an hour, neither blowing the whistle nor ringing the bell continuously, as required by law, was gross negligence per se; and when we add to it the negligent manner in which it had banked its cars on the sidetrack, thus cutting off from the traveling public the view of the main line, except the small opening of about sixteen feet at the crossing--a condition of things of which the railroad company is bound to be held to know--the negligence of the company is intensified to that of the grossest known to the law. And in comparison with this, the negligence of the deceased, if any, is insignificant indeed.

"So many questions are integrated into the solution of the question of negligence, and it is so necessary to examine all the circumstances making up the situation in each case, that it must be a rare case of negligence which the court should take from the jury." Bell v. Southern Ry. Co., 30 So. 821, Ante 234; Stevens v. Railroad Co., supra.

We submit that this is not one of the rare cases referred to, and that the court erred in excluding the evidence from the jury and granting the peremptory instruction in this case.

J. W. Buchanan, for appellee.

In the case of Jobe v. Railroad Co., 71 Miss. 740 (S. C., 15 So. 219), the court say: "The attentive exercise of sight and hearing would have warned the victim of his own folly in attempting to cross the track in front of an approaching train, and the calamity which befell him would have been averted if he had heeded the warning of his senses. The railroad company was negligent--palpably, grossly negligent; but, negligent as was the company, no hurt would have come to appellant if he himself had not also been palpably, grossly negligent. His failure to use that care and caution which his dangerous situation demanded, that great care and most watchful circumspection which the greater perils of an obstructed view of the track required of him, was the efficient cause of his lamentable injury. If men will go heedlessly on railroad tracks, not using care and caution commensurate with the apparent danger, and disaster shall overtake them, the consequence must fall upon their own heads."

That was a parallel case to the one at bar; but we also call the court's attention to the cases of Collins v. Railroad Co., 77 Miss. 855 (S.C., 27 So. 837), and Railroad Co. v. McLeod, 78 Miss. 342 (S.C., 29 So. 76). In the latter case this court decided in favor of the railroad company, and, in rendering the decision, used the following language: "In such cases the negligence of the railroad company in not sounding an alarm for the crossing cannot avail to condone the lack of ordinary care by the party injured. On plain principles, the verdict below was unwarranted, and the motion for a new trial should have been sustained."

In the case of Railroad Co. v. Eakin, 79 Miss. 738 (S.C., 31 So. 414), this court, in reversing the case, said: "Where their road goes over a railway or under its trestle, they should exercise ordinary prudence to ascertain whether trains are moving. This is a requirement for safety at all times on approaching crossings, and especially so where sight or hearing is obstructed. Howell v. Railroad Co., 75 Miss. 250 (S.C., 21 So. 746)."

It is a well-settled principle of law in this state that...

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