Illinois Cent. R. Co. v. Mann

Decision Date28 September 1925
Docket Number24993
Citation106 So. 7,141 Miss. 778
CourtMississippi Supreme Court
PartiesILLINOIS CENT. R. CO. v. MANN et al. [*]

Division A

Suggestion Of Error Overruled November 23, 1925.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG Judge.

Action by Mattie Mann and others against the Illinois Central Railroad Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Overruled.

R. V. Fletcher, and May, Sanders & McLaurin, for appellant.

I. The court erred in refusing the peremptory instruction requested by the defendant. It is contended that the defendant's employees failed to ring the bell or blow the whistle as a signal of their approach to the public crossing. The case seems to have been tried out and permitted to go to the jury upon the mistaken theory that the crossing was a public crossing devolving upon the engineer in charge of the train the duty to ring the bell and blow the whistle, as required by the statute regulating that subject. The crossing in question was not a public crossing within the purview of section 4045 of the Code, which requires the ringing of a bell or the blowing of a whistle upon the approach to a public crossing. The proof shows beyond dispute that the crossing in question was a private crossing established for the benefit of Bill Burgess who owned a farm which was bisected by the raidroad at this point when the road was built. It is true the witnesses testified that this crossing was permissively and promiscuously used by people in the neighborhood for their own convenience in preference to the public highway crossing which was situated several hundred yards away. But, there was no proof made, nor offered, that this crossing had ever been dedicated to the public, nor that it had ever been maintained by the public, nor that the public used it under any claim of right to do so, nor was it shown for what length of time the crossing had been used by persons other than Bill Burgess. Under these facts this was not a public crossing, as declared by this court in the case of Gulf & Ship Island Railroad Company v. Adkinson, 117 Miss. 118.

This, then, was not a public crossing, and the engineer was under no duty to ring the bell or blow the whistle, as required by the statute in the case of public crossings. He owed the deceased no duty except not to wilfully, wantonly, or negligently injure him after discovering his position of peril on the track. The testimony is undisputed that as soon as the deceased drove out of the cut right onto the track the engineer did everything humanly possible to slow down the train and prevent striking the deseased, but he was too close to avert the accident. If the deceased had stopped, looked and listened, or done either one of these things, he would have discovered the approaching train and could, and no doubt would, have prevented the accident, but instead he drove out of the cut onto the track in front of the oncoming train and in so doing was guilty of the grossest kind of negligence, which was the proximate cause of the injury.

We, therefore, confidently submit that there was no negligence of the defendant shown which proximately contributed to the injury, but on the contrary it is shown that the proximate cause of the injury and death of Reuben Mann was his own sole negligence, hence the defendant was entitled to the peremptory instruction.

II. The prima-facie instruction given for plaintiff misstates the law in a material particular and constitutes reversible error. There have been many changes rung upon the prima-facie statute, section 1985 of the Code of 1906, and many of the instructions predicated upon that statute have been condemned, but so often has the statute been construed that it would seem fair to assume that there is no longer an excuse for writing instructions predicated on the statute that would not harmonize with the decisions of this court, but to indulge such an assumption is to err. The statute declares that the proof of injury by the running of the locomotive or cars of the railroad company "shall be prima-facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury." The statute, as drawn, places a heavy burden upon railroad companies and one from which they are frequently unable to escape because of inability to show the circumstances accompanying an injury, but the plaintiff's counsel in this case was not satisfied with casting upon the defendant the full burden of the statute, which raises the presumption of negligence on the part of the employees of the defendant, but went one step further and declared in the instruction that such injury raises the presumption "that Reuben Mann exercised reasonable care to ascertain whether or not a train was coming before he entered upon the track." The plaintiff's attorney evidently had the idea that to indulge the presumption that the defendant was guilty of negligence was tantamount to saying that the plaintiff's intestate was free of negligence and it necessarily follows that if that interpretation is correct the liability of a railroad company upon proof of injury by the running of a train would be absolute.

A similar instruction given for the railroad company in Grantham v. G. & S. I. R. R. Co., 138 Miss. 360, 103 So. 151, was condemned by this court, and the giving of the instruction was declared to be reversible error.

III. The instructions for plaintiff and defendant were conflicting and misleading, and furnished the jury no safe guide in arriving at their verdict. It will be borne in mind that the declaration charged that the accident occurred at a public crossing. The testimony failed to show that the crossing was a public crossing, but on the contrary, established that it was a private crossing, according to the principle laid down by this court, in Railroad Company v. Adkinson, supra.

According to our contention, the testimony for the defendant established the fact that the deceased failed to stop, look and listen, and was guilty of gross negligence, but the testimony was not sufficient to prevail when loaded down with the erroneous instruction given for the plaintiff.

J. S. Finch, J. E. Berry and J. A. Cunningham, for appellees.

There is no evidence in the record to support appellant's position that the plaintiff's decedent did not exercise the ordinary care required of him by law before attempting to cross its railroad track. The record clearly shows that this crossing is more than a mere farm crossing, as contended by appellant. This is a much traveled road, and has been so used by the public for a period of thirty or forty years, reaching back long prior to the construction of the railroad.

It was shown by the evidence that it was the custom of the railroad company to ring its bell or blow its whistle on approaching this crossing for the safety of the public reasonably expected to be endangered at this crossing. It was shown by a member of the train crew, offered by counsel for appellant that it would be very dangerous to approach this crossing at the speed at which they were traveling without giving due and proper warnings to the public of their approach, and that they did undertake to give such warnings at this instance, which, however, is contradicted by this record and is a controverted fact which the jury passed on.

The case was submitted to the jury to determine whether or not the appellant was guilty of negligence in the manner in which they approached this crossing.

Under the proof the trial court submitted the question of appellant's negligence to the jury, under the law announced in Illinois Central Railroad Company v. Dillon, 111 Miss. 520, 71 So. 809; Ruling Case Law. Railroads, sec. 233; Thompson's Commentaries on the Law of Negligence, secs. 1562, 1564.

These authorities show that...

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