Jackson Electric Railway Light & Power Co. v. Carnahan

• Decision Date: 15 March 1909
• Docket Number: 13,444
• Citation: 48 So. 617,95 Miss. 66
• Parties: JACKSON ELECTRIC RAILWAY, LIGHT & POWER COMPANY v. WALLACE CARNAHAN
• Court: Mississippi Supreme Court

48 So. 617

95 Miss. 66

JACKSON ELECTRIC RAILWAY, LIGHT & POWER COMPANY v. WALLACE CARNAHAN

No. 13,444

Supreme Court of Mississippi

March 15, 1909

From the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Carnahan appellee, was plaintiff in the court below; the railway etc., company, appellant, was defendant there. From a judgment in plaintiff's favor, $ 955, defendant appealed to the supreme court.

Plaintiff desiring to take a street car in the suburbs of Jackson, came to the track at a place where there was no regular stop. He saw the car approaching at a rapid rate and signaled for it to stop at the next crossing, about two hundred feet distant; and, there being no sidewalk, he got in the middle of the track, frequently used by pedestrians, and with his back to the approaching car walked on the track toward the stop. After he had gone about twenty feet, he discovered that the car had not slackened its speed, was almost upon him, and he was struck and severely injured by the car before he could get off the track. The plaintiff was an elderly man, and the track straight at the point where he was struck. The railroad company pleaded contributory negligence on the part of the plaintiff.

Judgment reversed and cause remanded.

Williamson, Wells & Peyton, for appellant.

The general rule is that the negligence of the plaintiff or of the person injured for whose injury the action is brought, contributing directly or approximately toward the bringing about of the injury bars a recovery for damages. Railroad Co. v. Houston, 95 U.S. 697.

Contributory negligence according to the definition of the same approved by this court, is the want of ordinary care to avoid injury from the act of another. One who contributes directly to his own injury by a failure to use due care, which would have saved him from harm resulting from the negligence of another cannot recover as is declared by this court in the following cases: Vicksburg, etc., R. Co. v. McGowan, 62 Miss. 682; Vicksburg, etc., R. Co. v. Alexander, 62 Miss. 496.

The doctrine of comparative negligence is not in force in this state. The law imposes upon everyone who is in full possession of his faculties, when approaching a known place of danger, the duty to exercise that degree of prudence, care and caution, which is incumbent upon a person of ordinary reason and intelligence in like circumstances; and a failure in this respect, under ordinary circumstances when it is apparent that the danger might have been avoided if such means had been so used, will bar the plaintiff from a recovery on account of his injury.

The appellee admits in this case, that he was in the outskirts of the city, not at any regular stop but about midway of a long block, and that he saw a rapidly approaching street car run by electricity coming towards him, and that he deliberately placed himself on the track in front of the rapidly approaching car, turned his back to it and walked between the rails without looking back or paying any heed whatever to the car which he knew was rapidly approaching him at the time, and which he knew always ran at this point in the city at a rapid rate of speed.

He needlessly exposed himself to peril, deliberately and voluntarily, and we respectfully submit that he was bound to exercise care in accordance with the condition by which he had voluntarily surrounded himself. It is not the case of one who is walking on the street car track as a part of the street necessarily, or heedlessly, who is unaware of approaching danger. Appellee states in his declaration, and reiterates the statement in his testimony, that he knew the car was approaching very rapidly at a distance of only one hundred and fifty feet at farthest, and that he voluntarily placed himself in front of it and walked down the track without paying the slightest heed to the car.

A very simple mathematical calculation will show that under such circumstances, even though the car should have been running at a most moderate rate of speed, it would necessarily reach the point where the appellee was in a very few seconds of the time, when he deliberately turned his back to it and walked down between the rails, solely for the reason that it was the most comfortable place to walk. Chicago, etc., R. Co. v. Roberts, 44 Ill.App. 180; Illinois, etc., R. Co. v. Welden, 52 Ill. 290; Chicago, etc., R. Co. v. Halsey, 133 Ill. 248, 254.

Where it appears that an injury would not have happened but for the culpable negligence of the person injured concurring with that of other party, no recovery of damages for the injury can be had. Woods v. Jones, 34 La. Ann. 1086; Railroad Co. v. Aspell, 28 Pa. St. 147.

Where a person by his own voluntary act brings an injury upon himself he cannot make it the ground of recovering damages against another where he is not impelled thereto by some imminent danger or exasperating circumstance, for which that other is responsible. Atkins v. Trans. Co., 79 Ill.App. 19; Harris v. Clinto, 64 Mich. 447.

This is not a case of a traveler using the street which is also occupied by a street railway where the traveler had no reason to anticipate danger except from the presence of the tracks on the street. A street railroad company whose track is laid along a public street and on the surface thereof, is not, as a steam railway company is, entitled to the exclusive use of its tracks, but the public have the right to use that portion of the roadway occupied by the track for the purposes of ordinary travel. But in this regard their right is undoubtedly subordinate to the right of the street railway company in such sense that they are obliged to yield the right of way on the approach of a car, since the car traveling on a fixed track cannot yield the right of way to the public. The person so using the track must obviously be on the alert and use reasonable diligence to discover a car approaching him and get off the track and out of the way of the car. It is his plain duty to listen for signals and to look from time to time, so that when a car is seen, he may turn off and allow it to pass without slackening its ordinary speed. Thatcher v. Central Tract Co., 166 Pa. St. 66; Adolph v. Central Bank R. Co, 76 N.Y. 530.

While a pedestrian has the right in legal strictness to use any part of the highway for the purpose of passage, the roadway, and specially so much of the roadway as he knows is used by the street railway is not his proper place for traversing the street lengthwise. If he assumes without special reason to walk along the street railway track he may not be wantonly or negligently run down by a street car, yet the fact of his making a footway of the track imposes upn him the obligation of special care to the end of keeping out of the way of passing cars, and not impeding their progress and interrupting public travel. That this view of the law is correct is illustrated by the decision of courts of last resort in the following cases:

Where a woman, who with the entire street open to her, walked on a street railway track, knowing that a car was coming behind her, she was adjudged guilty of such contributory negligence as barred her from any recovery. Gilmartin v. Lackawana Transit Co., 186 Pa. St. 193; McGee v. Consolidated Co., 102 Mich. 107, 20 L. R. A. 300; Smith v. Crescent City R., 17 So. 302; Watson v. Mound City R. Co., 133 Mo. 246; Nugent v. Railroad Co., 181 Pa. St. 160; Hickman v. Electric R. Co., 56 N.Y.S. 751; Doller v. Union R. Co, 39 N.Y.S. 770.

Powell & Powell, for appellee.

The instructions given on both sides fully and fairly propound the law of the case, and the instructions refused for the defendant were properly refused as they omitted that provision of the law which holds a party liable notwithstanding the contributory negligence of another if the accident could have been avoided after the danger of that other was seen. Cottrell v. Southern R'y Co., 80 Miss. 610, 32 So. 1. There can be no question from the evidence in this case but that the appellant was guilty of the grossest kind of negligence. The car had just come down a hill some four hundred feet away, around a curve at a rate of speed from thirty to forty miles an hour and that too in a populous part of the city and where pedestrians were accustomed to use the track as a...