Illinois Cent. R. Co. v. Bethea

Decision Date07 May 1906
Citation88 Miss. 119,40 So. 813
CourtMississippi Supreme Court

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

Mrs Bethea and others, the appellees, the widow and children of J. W. Bethea, deceased, were plaintiffs in the court below the railroad company, the appellant, was defendant there. From a judgment in plaintiffs' favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Among the divers errors assigned by the appellant in the supreme court were the following:

The refusal of the court to grant a peremptory instruction for the defendant.

The admission in evidence of a rule of the railroad company which is as follows: "While switching over public crossings at grade, one of the crew must protect the crossing unless other provisions are made."

The refusal of the following instruction asked by the railroad company: "(3) The court instructs the jury for the defendant: Should the jury believe from the evidence that the railroad company failed to signal for the crossing, and was thereby negligent and in any way contributed to the accident and that Bethea failed to exercise due care and caution in keeping a lookout for the approaching train, and that both he and the railroad company were guilty of negligence, and that the death was due to the negligence of both, then no recovery can be had in this case and the jury should find for the defendant."

Judgment affirmed.

Mayes & Longstreet, and J. M. Dickinson, for appellant.

The court below erred in refusing the peremptory instruction requested by defendant.

The testimony shows that the deceased had lived for years at Fernwood, and was perfectly familiar with the crossing in question and its surrounding conditions; that in approaching the crossing from the west side, on which the residence of the deceased was located, the view up the railroad was more or less obstructed by bushes, growing corn, etc.

It was half-past eight o'clock on a morning in June, and consequently fully light, and people had for some time been at their respective places of business.

Bethea's residence was on the west side of the track, and his office was in the building of the Fernwood Lumber Co., on the east side. It was his daily habit to go more than once a day backward and forward between the two. On the morning in question he was seen by several parties to be approaching the crossing in his buggy from the direction of his residence. He was driving a horse described as somewhat spirited, but not afraid of trains, and it is nowhere claimed that any restiveness of his horse entered into this catastrophe.

We have all the conditions which by repeated decisions of this court make out a case of contributory negligence of the party injured: A familiar ground; an alert man in the full possession of all his physical senses; the broad daylight; an easy approach (whether the view is party obstructed or not, being immaterial as we shall hereafter show, except that if obstructed there was all the more demand for extra vigilance); in driving on the track by one in full control of his horse directly in front of a coming train, under conditions when it is perfectly manifest that the exercise of that vigilance in looking and listening which the action called for would have prevented the casualty.

Unless the previous adjudications of this court about injuries received at public crossings are to be ignored and the law overturned, the peremptory instruction asked by the defense should have been given.

Apparently the court below declined to give that instruction on the theory that Bethea received an invitation from the switchman, Simmons, to cross, and that such invitation took the case out of the ordinary rule; that he was entitled to rely upon the same, and to cross without diligently looking and listening for an approaching train. But if that was the court's theory in refusing this instruction, it was a mistaken one and is not the law.

The peremptory instruction for the defense should have been given although such a signal was made, if made; and that for the reason that the signal alleged is not even pretended to have been given by a trainman of the train which did the injury, and for the further simple reason that the conditions were such as that the exercise of any proper diligence in looking or listening would have shown to the deceased the approaching train in time to stop before going on the track. R. R. Co. v. Jobe, 71 Miss. 734 (s.c., 15 So. 129); R. R. v. McLeod, 78 Miss. 334 (s.c., 29 So. 76).

It is manifest that the measure of responsibility of the company for any blunder of Simmons at the crossing, if there was any, is limited to an injury inflicted at the crossing by the train of whose crew Simmons was a member. It was as to that train, and that train only, that he was charged with the duty of seeing that the crossing was clear; and his train was not only a different one, but was a different track, and was in fact concerned with a different crossing, and it did not inflict the injury.

The plaintiffs' instruction also assumes, without any evidence whatever of a legal nature, that Bethea "was induced to attempt to cross by such invitation." The extent of the evidence is, granting that Simmons' act can be taken as such an invitation, that Bethea was so situated as that he could see it. There is no evidence whatever that he did see it; there is none that he acted upon it; there is none that it had any influence in determining his course of conduct; the assumption that it did is all pure guess work and speculation, and for this reason the instruction is subject to the condemnation of the rule expounded in the case of Railroad Co. v. Cathey, 70 Miss. 332 (s.c., 12 So. 253), that "possibilities will not sustain a verdict"; followed in Railroad Co. v. Woolley, 77 Miss. 927, 944 (s.c., 28 So. 26); Brister v. Illinois, etc., R. R. Co., 84 Miss. 33 (s.c., 36 So. 142).

The fact that such a signal was given, even when given by a trainman of the train which offended, does not relieve the party approaching the crossing from the obligation of diligence. It is not the determinative fact; it is only an element to be taken into consideration in determining the ultimate fact as to whether the proper degree of diligence was or was not observed. Signal or no signal, it is still the duty of every party crossing to make diligent use of his senses of sight and hearing to detect an approaching train. See the following authorities: 3 Elliott on Railroads, sec. 1166; Denver, etc., Ry. Co. v. Gustofson (Colo.), 41 P. 505; Berry v. Pennsylvania R. R. Co., 48 N. J. Law, 141; Van Riper v. Railroad Co., 59 A. 26; Romeo v. Railroad Co., 87 Me. 540; Maryland Railroad Co. v. Newbern, 62 Md. 391; Shultz v. Railroad Co. (N. Y.), 69 Hun., 515.

The court below erred in admitting in evidence over the objection of defendant the company's rule in these words: "While switching over public crossings at grade, one of the crew must protect the crossing unless other provisions are made."

The rule was employed for a purpose not contemplated by it, and not embraced within its terms; and by introducing it the railroad company was subjected to liability in respect to the management of train No. 1 for a person who did not belong to that train and was in no wise concerned either under the rules of the company or under the law of the land with its operation.

In this connection, especially, we repeat our proposition already advanced that the court erred in refusing to give the fourteenth and seventeenth instructions requested by defendant. The fact, if it was a fact, that in approaching the crossing Bethea directed his attention to the freight train which occupied the easternmost or far track from him, did not exonerate him from the obligation to attend to the westernmost or nearer track, which he was immediately about to cross, before going upon it. Undertaking to cross both tracks, it was his duty to watch both tracks and to employ his senses of sight and hearing to see that both tracks were clear. The fact that the far track was being used by a freight train could not, and did not, exempt him from the obligation to see that the near track was clear before he drove upon it.

The court below erred in refusing the third instruction asked by the defendant.

It seems clear that the defendant was entitled to have this instruction given. It was an expression in its simplest form of the doctrine of contributory negligence, the point being that the plaintiff was not entitled to recover if "both he and the railroad company were guilty of negligence, and that the death was due to the negligence of both." Certainly that is the law. It is the central idea of the doctrine of contributory negligence. We can only conjecture that the court became confused in some way between that instruction and that other form of instruction, which would have been properly refused, in which the defendant would try to exonerate himself by showing that the injury was caused by the concurrent negligence of some third party.

Obviously there are two forms in which the question of concurrent negligence might come into a case: First, where the defendant does undertake to set up the concurrent negligence of a third party in order to exonerate himself, in which case an instruction to that effect would, speaking broadly, be properly refused, because it is no exoneration--it merely makes out a case of joint liability; and, secondly, if the negligence is concurrent between the plaintiff and the defendant, then the plaintiff cannot recover, because that is contributory negligence. And such was the instruction asked and improperly refused in this...

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