Illinois Cent. Railroad Co. v. Daniels

• Decision Date: 06 December 1909
• Docket Number: 14,029
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. JULIA H. DANIELS

50 So. 721

96 Miss. 314

ILLINOIS CENTRAL RAILROAD COMPANY v. JULIA H. DANIELS

No. 14,029

Supreme Court of Mississippi

December 6, 1909

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

Mrs Daniels, appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor for $ 20,000 the defendant appealed to the supreme court. The facts are sufficiently stated in the opinion of the court.

Affirmed.

Mayes &amp Longstreet, for appellant.

[The reporter has been unable to find the brief of counsel for appellant, hence no synopsis of it is given.]

H Cassedy, J. W. Cassedy, and J. N. Yawn, for appellee.

The accident was at a passenger depot. The deceased was a passenger. In these facts, it is obvious that the case is not one of the ordinary crossing cases wherein the accident happened at an ordinary highway crossing. There are other and more important principles involved. The railroad company owed to its passengers other and greater duties than it did to mere travelers at highway crossings. The very presence of railroad tracks across a highway warns the traveler of danger to be anticipated; but the depot and the depot grounds and ways, even though one of the ways may be a highway across the tracks, invite the passenger and assure him that the company has so arranged its business and the running of its trains as to insure his safety, and the tracks, in themselves, lose this element of warning.

The first proposition, therefore, in the nature of things, and the principal point in the case, is the doctrine of "Stop, look, and listen," which doctrine has been applied to and the duty devolved upon the traveler who crosses a railroad track upon a public highway, or other way. It is not enforced in all of its rigidity and severity in the state courts of Mississippi as it is in the federal courts and in some of the other state courts. The rule that the traveler must "stop, look, and listen" is treated by "Thompson in his latest commentaries on the law of Negligence, and it is stated in section 1644 that the traveler must stop twice, look and listen several times, etc. This rule has been invoked in Mississippi on numerous occasions, and the natural imprudence of human kind has been recognized by this court in Vicksburg, etc., R. Co. v. McGowan, 62 Miss. 698, wherein the court says: "So people are in the habit of crossing and going along railroad tracks, oftentimes most imprudently. The statute prohibiting rapid running in cities, towns, and villages, was designed to protect life and property because of the known imprudence of many who need protection against themselves."

The most of the cases in this state have been with reference to street crossings; some with reference to country highway crossings and some with reference to other crossings customarily used by pedestrians and vehicles. In this case, we are to add, for the first time, another class of crossings to the negligence law of Mississippi, viz: the crossing to the depot of a railroad company.

"One crossing a railroad track who can see, must see at his peril." Murdock v. Yazoo, etc., R. Co., 77 Miss. 487; Illinois, etc., R. Co. v. McLeod, 78 Miss. 334.

"It is not necessary to stop, look, and listen, but it is necessary to do one of the three things." Jackson v. Mobile, etc., R. Co., 89 Miss. 32.

The criterion is whether the injured party observed due care under the circumstances of his situation. Vicksburg, etc., R. Co. v. McGowan, 62 Miss. 682. To the same effect, Mobile, etc., R. Co. v. Stroud, 64 Miss. 784; Louisville, etc., R. Co. v. French, 69 Miss. 121; Jobe v Memphis, etc., R. Co., 71 Miss. 734; Winterton v. Illinois, etc., R. Co., 73 Miss. 831; Pugh v. Illinois, etc., R. Co., 23 So. 326; New Orleans, etc., R. Co. v. Brooks, 85 Miss. 269; Alabama, etc., R. Co. v. Lowe, 73 Miss. 203.

The doctrine of "stop, look, and listen" was fairly presented in the case of Louisville, etc., R. Co. v. Crominarity, 86 Miss. 464, in which the court says: "We decline to adopt any such rigid rule. What constitutes negligence must depend always upon the surrounding conditions and the attendant circumstances of the particular instance. No hard and fast rule of action can be prescribed which will make the same course of conduct under any and all circumstances either wise or unwise, cautious or reckless." This case is reaffirmed in the case of Hopson v. Kansas City, etc., R. Co., 87 Miss. 789.

All of the foregoing cases referred to street and highway crossings.

In further illustration of the modified rule, refer to the cases of Stevens v. Yazoo, etc., R. Co., 81 Miss. 195, and Allen v. Yazoo, etc., R. Co., 88 Miss. 25.

The hard and fast rule that the traveler must "stop, look, and listen" or be guilty per se of contributory negligence, does not exist in this state. The true rule is announced in the Crominarity case that he must "use that degree of care and caution which is rendered necessary by a reasonable regard for his safety under the peculiar circumstances and conditions by which he is at the time confronted."

At highway crossings, the duty of the railroad company seems to be no greater towards the individual than the duty of the individual towards the railroad company. In these cases the railroad company's duty extends only to the observance of statutory requirements as to ringing the bell, blowing the whistle, etc. When a railroad company establishes its depot, and waiting rooms it invites the public to come and use the ways provided or suffered to be used, and its duty to protect the individual from danger grows greater as the danger increases. "It is under strong obligations to exercise the utmost care and caution in the movement of its trains and the handling of its cars so as to prevent injuries to persons going to and from its offices." Louisville, etc., R. Co. v. Hirsch, 69 Miss. 126; Atchison, etc., R. Co. v. McElroy, 76 Kan. 271, 91 P. 785, 123 Am. St. Rep. 134 and note; Thompson on Negligence, 1844 and note 25; Ib. §§ 2886, 2988, 2989.

A person is not guilty of contributory negligence in failing to "stop, look, and listen" in passing from the depot to a train where he was obliged to cross an intervening track. Jewett v. Klein, 27 N.J.Eq. 550; Terry v. Jewett, 78 N.Y. 338; Besecker v. Delaware, etc., R. Co., 220 Pa. 507, 123 Am. St. Rep. 714.

The cases of Jewett v Klein and Terry v. Jewett, supra, seem to be the leading cases on the identical points at issue in this case. These cases are cited by the supreme court of the United States when that court made the first advance in announcing the same doctrine, and these cases are cited by nearly every other state court dealing with the same question. Warner v. Baltimore, etc., R. Co., 168 U.S. 339, 42 L.Ed. 491; Chicago, etc., Ry. v. Lowell, 151 U.S. 209; Chesapeake, etc., Ry. Co. v. King, 40 C. C. A. 432; Graven v. McLeod, 35 C. C. A. 47.

A passenger is justified in assuming that the railroad company has exercised due care and so regulated its trains that the road will be free from interruption or obstruction when passenger trains stop at a station to receive and deliver passengers, and the duty to stop, look, and listen is not required of the passenger and contributory negligence cannot be predicated of a failure to do so. Authorities in United States courts, supra, and following state decisions: Philadelphia, etc., Ry. Co. v. Anderson (Md.), 8 L. R. A. 673; Parsons v. New York, etc., R. Co. (N. Y.), 3 L. R. A. 683; Atchison, etc., R. Co. v. Shean, 18 Colo. 368, 20 L. R. A. 729; Tubbs v. Michigan, etc., R. Co., 107 Mich. 108, 61 Am. St. Rep. 320; Brassel v. New York, etc., R. Co., 84 N.Y. 241, 3 Am. & Eng. R. R. Cases, 380 and note; Warren v. Flitchburg Ry. Co., 8 Allen, 227, 85 Am. Dec. 700; Gaynor v. Old Colony R. Co., 100 Mass. 208, 97 Am. Dec. 96; Barkley v. New York, etc., R. Co. (N. Y.), 5 Am. Neg. Rep. 218; Chicago, etc., Ry. Co. v. Kelly (Ill.), 6 Am. Neg. Rep. 488; Betts v. Lehigh Valley R. Co., 191 Pa. 575, 45 L. R. A. 261; Atlantic City By. Co. v. Goodin, 62 N. J. L. 394, 45 L. R. A. 671.

It is self evident that the railroad company would be guilty of negligence in running a train at a rapid speed past a station where another train is waiting to receive and discharge passengers. The following cases are illustrative: Chicago, etc., R. Co. v. Ryan, 62 Ill.App. 264; Nichols v. Chesapeake, etc., R. Co., 2 S.W. 181; Redding v. Cent. R. Co., 68 N. J. L. 641, 54 A. 431; Gulf, etc., Ry. Co. v. Morgan, 26 Tex. Civ. App. 378, 64 S.W. 688; Birmingham Ry., etc., Co. v. Landrum (Ala.), 45 So. 198; Central of Georgia Ry. Co. v. Hyatt (Ala.), 43 So. 867.

Where it appears that the circumstances were such that a person could not reasonably have expected the approach of a train at the time of his crossing the track, his failure to look and listen is not negligence as matter of law, but a question for the jury. Fulmer v. Illinois, etc., R. Co., 68 Miss. 355; Alabama, etc., Ry. Co. v. Summers, 68 Miss. 566.

See also following cases from other states to the same effect wherein the rule is applied, and the matter submitted to the jury under a variety of circumstances: Scott v. St Louis, etc., Ry., 70 Ark. 137; Tiffin v. St. Louis, etc., Ry., 78 Ark. 55; St. Louis, etc., Ry. Co. v. Tomlinson, 69 Ark. 489; Mixon v. Chicago, etc., R. Co., 84 Iowa 332; French v. Taunton Branch R. Co., 116 Mass. 537; Baker v. Kansas City, etc., R. Co., 122 Mo. 523; Bonnell v. Delaware, etc., R. Co., 39 N. J. L. 189; Bowen v. New York, etc., R. Co., 89 Hun, 594, 35 N.Y.S. 540; Bradley v. Ohio River Co., 126 N.C. 735; Dougherty v. Chicago, etc., R. Co. (S. D.), 104 N.W. 672; International, etc., B. Co. v. Mitchell (Tex.), 60 S.W. 996; Ferguson v. Wisconsin,...