Illinois Cent. R. Co. v. Bloodworth

• Decision Date: 09 January 1933
• Docket Number: 30038
• Citation: 166 Miss. 602,145 So. 333
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENT. R. CO. v. BLOODWORTH et al

145 So. 333

166 Miss. 602

ILLINOIS CENT. R. CO. v. BLOODWORTH et al

No. 30038

Supreme Court of Mississippi

January 9, 1933

Division A

1 RAILROADS.

Railroad's duty to pedestrian struck by automobile when crossing bridge over tracks was to use ordinary care to keep bridge in reasonably safe condition for persons using ordinary care (Code 1930. section 6127).

2 EVIDENCE.

Court takes judicial notice that bridges constructed by state and federal governments are not usually constructed with guard rails for protection of pedestrians.

3 RAILROADS.

Railroad had duty to keep bridge over tracks in condition rendering it reasonably safe for traffic and for such uses as might be reasonably necessary for persons using reasonable care (Code 1930, section 6127).

4 NEGLIGENCE.

"Ordinary care" of reasonably prudent man does not demand that person should prevision unusual, improbable, or extraordinary occurrence.

5. NEGLIGENCE.

"Probability" arises in law of negligence when viewed from standpoint of judgment of reasonably prudent man, as reasonable thing to be expected.

6 NEGLIGENCE.

Failure to anticipate remote possibilities does not constitute "negligence."

7. RAILROADS.

Railroad had right to presume that its bridge over tracks would be used in lawful manner (Code 1930, section 6127).

8. RAILROADS.

Where railroad maintained bridge over tracks, there was no statute requiring separate bridge for pedestrians and none requiring guardrails between walkway and driveway (Code 1930, section 6127).

9. RAILROADS. Railroad maintaining bridge over tracks with guardrails on side and walkways six inches high could not be charged with negligence respecting accumulation of debris and no guardrails on walkway where motorist, racing, while intoxicated, knocked pedestrian off bridge.

Facts were that bridge had driveway about seventeen feet wide, on each side of which was walkway of concrete about six feet in width and built up above driveway at height of six inches, with guardrail on extreme edge of each walkway; that there was no guardrail between driveway and walkway; that dirt had accumulated on driveway so that walkway was about four inches above deposit of dirt; that two automobile drivers were racing and that one of them, while intoxicated, came on bridge at terrific speed and struck water main causing blowout and then veered back and forth and struck pedestrian and hurled her to ground below.

HON. HERBERT HOLMES, Judge.

APPEAL from circuit court of Tallahatchie county, HON. HERBERT HOLMES, JUDGE.

Action By Ed. D. Bloodworth and others against the Illinois Central Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Chas. N. Burch, H. D. Minor, C. H. McKay, all of Memphis, Tennessee, W. E. Stone, John M. Kuykendall, both of Charleston, and May, Sanders, McLaurin & Byrd, of Jackson, for appellant.

There was no negligence of defendant railroad company. The court erred in refusing defendant a directed verdict.

Under the theory of the plaintiff the railroad company would become the insurer of the safety of those using the sidewalk of the bridge, though the law is well settled that neither a municipality nor a railroad company is insurer of those using streets or bridges.

It is pure conjecture and speculation to claim that the injury would not have occurred if there had been a railing between the sidewalk and the driveway or if the bridge had been free, of dust.

The fact that the bridge was constructed in the same manner as other bridges in the state and the fact that no previous accident had occurred on this bridge were properly admitted in evidence as showing that the defendant was not guilty of negligence.

Railroad Co. v. McLellan, 80 Miss. 708; Nesbitt v. Greenville, 69 Miss. 22, 29; Butler v. Oxford, 69 Miss. 618; Walker v. Vicksburg, 71 Miss. 899, 901; McComb City v. Haymen, 124 Miss. 525, 535.

The law does not require streets or sidewalks so constructed as to secure absolute immunity from danger in using them, nor is it bound to employ the utmost care and exertion to that end.

Meridian v. Crook, 109 Miss. 700, 712; Gulfport & Mississippi Coast Traction Co. et al. v. Manuel, 123 Miss. 266; Mississippi Power Company v. Sellers, 160 Miss. 512.

A verdict or judgment based on conjecture cannot stand.

As to conjectures, those do not belong to courts, juries, or witnesses--decrees and judgments may not be based on conjectures.

Tyson v. Utterback, 154 Miss. 300; Stevens v. Stanley, 154 Miss. 630; Elliott v. G. M. & N. R. Co., 145 Miss. 768, 778; Burnett v. Pa. Railroad Company, 33 F.2d 779.

Certain statutory provisions were flagrantly and outrageously violated by Van East, the party in charge of the automobile which struck and killed Miss Bloodworth. So far as the bridge across the railroad tracks is concerned, there was no violation of law either as to its construction or maintenance.

The total obligation of a railroad company as to maintaining a bridge over its tracks is stated in section 7903 of Hemingway's Code of 1927 (Code of 1930, sec. 6217): "It shall be the duty of the company to erect and keep in order all bridges on any highway, at such points as bridges may be necessary to cross the railroad." There was no statutory provision in effect at the time of the fatal injury involved herein requiring even the erection of banisters on the outer sides of bridges.

The proximate cause of the injury was the reckless and unlawful driving of an automobile for which defendant railroad company was in no way responsible.

The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

22 R. C. L. 110; Marqueze v. Sontheimer, 59 Miss. 430; L. & N. R. Co. v. Daniels, 135 Miss. 33; Wharton on Negligence, sec. 134; Howell v. Railroad, 75 Miss. 242; Clisby v. M. & O. R. Co., 78 Miss. 937; Lyons v. Watt (Colo.), 95 P. 949, 18 L.R.A. (N.S.) 1135; Bell v. Wayne, 123 Mich. 386, 82. N.W. 215, 48 L.R.A. 644; Briggs v. Pine River Twp., 150 Mich. 381, 114 N.W. 221; Swain v. Spokane, 94 Wash. 616, 162 P. 991, L.R.A. 1917D, 754; Herr v. Lebanon, 149 Pa. 222, 24 A. 207, 16 L.R.A. 106; Thubron v. Dravo Contracting Co., 238 Pa. 442, 86 A. 292, 44 L.R.A. (N.S.) 699; Dallas v. Maxwell (Tex.), 248 S.W. 667, 27 A.L.R. 927; McClain v. Garden Grove (Iowa), 48 N.W. 1031, 12 L.R.A. 482; Willis v. Armstrong County, 183 Pa. 184, 38 A. 621; Nichols v. Pittsfield, 209 Pa. 240, 58 A. 283; Norris v. Ross, 98 Kan. 394, 161 P. 592; Atchison, Topeka & S. F. Ry. Co. v. Calhoun, 213 U.S. 1; Milwaukee, etc., R. Co. v. Kellogg, 94 U.S. 75; 16 A. & E. Ency. of Law (1 Ed.), pp. 436-438; Patton v. Railway Co., 89 Tenn. 373.

The accident was not one which could have been reasonably foreseen.

Butler v. Oxford, 69 Miss. 618; Railroad v. Rooks, 78 Miss. 91; Mississippi Power Company v. Sellers, 160 Miss. 512; Crawley v. Railroad Company, 70 Miss. 340.

The instructions given for the plaintiffs are in direct conflict with instructions given for the defendant.

An erroneous instruction is not cured by a subsequent contradictory instruction, unless the latter makes direct reference to, and withdraws or qualifies, the erroneous instruction.

10 C. J., page 1087, sec. 1474; Blashfield on Instructions to Juris, sec. 24.

Nothing is better settled in this state than that an incorrect instruction is not cured by a correct instruction, and that a verdict resting on contradictory and misleading instructions will not be sustained.

Railroad v. Cornelius (Miss.), 95 So. 90; Railroad v. Phillips (Miss.), 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; Railroad v. McGowen, 92 Miss. 603; McNeil v. Bay Springs Bank, 100 Miss. 271; Soloman v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677; Railroad v. Trotter, 61 Miss. 417, 422; Railroad v. Minor, 69 Miss. 722; Y. & M. V. R. Co. v. Hawkins, 159 Miss. 775; L. & N. R. Co. v. Cuevas, 139 So. 397.

Plaintiffs rely upon the case of Nelson v. Illinois Central, 98 Miss. 295, in which both the railroad company and the Pullman Company was held liable for the loss of the hand baggage of plaintiff in that case. We do not deny that there are cases of joint tort feasors, both of whom can be held liable, but in such instances it is necessary that the negligence of each joint tort feasor must be not merely a cause of the injury but a direct and proximate cause.

Denman & Breland, of Sumner, T. Webber Wilson, of Laurel, T. H. McElroy, of Oxford, and Roberson & Cook, of Clarksdale, for appellees.

If the railroad company was negligent in the construction and maintenance of the bridge, either as to the failure to properly construct the sidewalks, or the absence of the guardrail, or as to permitting dirt and debris to accumulate on the vehicular portion of the bridge, and such negligence contributed to the injury complained of, then it follows as a matter of course that the appellant is liable for all damages sustained, notwithstanding the fact that the driver of the automobile might likewise be liable therefor, and in order to render the railroad company liable for the injuries sustained, it is not necessary that its negligence should have been the sole proximate cause of the injury.

Illinois Central Railroad Company v. Thomas, 68 So. 773.

One joint tort feasor is liable for the whole injury, notwithstanding the fact that his negligence was not the sole cause of the injury.

26 R. C. L. 764; Nelson v. Illinois Central Railroad Company, 98 Miss. 295, 53 So. 619, 31 L.R.A. (N.S.) 689; 1 Cooley on Torts (3 Ed.), p. 246.

This would be true regardless of...