Keith v. Yazoo & M. V. R. Co

• Decision Date: 15 January 1934
• Docket Number: 30978
• Citation: 151 So. 916,168 Miss. 519
• Parties: KEITH v. YAZOO & M. V. R. CO
• Court: Mississippi Supreme Court

151 So. 916

168 Miss. 519

KEITH v. YAZOO & M. V. R. CO

No. 30978

Supreme Court of Mississippi

January 15, 1934

Division A

1 TRIAL.

Everything must be considered as proved which evidence establishes directly or by reasonable inference against party obtaining peremptory instruction.

2. AUTOMOBILES. Whether railroad was negligent in burning grass and weeds on right of way on windy day, when smoke was blown across nearby highway so as to be liable for collision between automobiles on highway, held for jury.

The facts disclosed that plaintiff stopped his truck on right side of highway, when he discovered that he could not see ahead of him on account of the dense smoke, and after stopping was suddenly struck by another automobile which was proceeding through the smoke without lights and without signaling.

3 NEGLIGENCE.

Where one party's negligence co-operates with negligence of another, both are liable for damages ensuing therefrom.

4 AUTOMOBILES.

Any negligence of railroad in burning grass and weeds on right of way on windy day which caused smoke to obscure adjacent highway held to co-operate with negligence of motorist in driving through smoke without lights and without signaling, as respects liability for collision between such automobile and another.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county HON. S. F. DAVIS, Judge.

Action by E. A. Keith, against the Yazoo & Mississippi Valley Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

See, also, 164 Miss. 566, 145 So. 227.

Reversed and remanded.

Wynn, Hafter & Lake, of Greenville, for appellant.

The court erred in granting a peremptory instruction for the defendant below and appellee here.

There have been many decisions before the court in which the liability has been fixed upon the railroad because of fires starting along their rights-of-way. In Reed v. Illinois Central Railroad Company, 72 So. 149, 111 Miss. 749, this court held that every case of this character must be determined by its own peculiar facts and circumstances, and that the jury should have been allowed to pass upon the question of negligence of the railroad and of whether or not the fire was started by the railroad company.

Muse v. Gulf & Ship Island Railroad Co., 48 So. 897, 95 Miss. 584; A. & V. R. R. Co. v. Baldwin, 52 So. 358, 96 Miss. 52.

We contend that the question of the proximate cause of the injury was a question sufficiently raised in the declaration, and supported by the evidence; and that the jury should have been permitted to pass on this question after all the evidence was in.

When an injury occurs through the concurrent negligence of two persons, and would not have happened in the absence of either, the negligence of both is the proximate cause of the accident, and both are answerable.

22 R. C. L. 129; Brinkley v. Southern Railroad, 113 Miss. 367, 74 So. 280; Jones v. Illinois Central Railroad Company, 75 Miss. 970, 23 So. 358; Mississippi Valley Railroad Company v. Smith, 103 Miss. 150, 60 So. 73; Miller, Administrator, v. Union Pacific R. Co., 78 U. S. Advance Sheet, Dec. 18, 1933, p. 147.

In order that a person may be liable for damages resulting from his negligence, it is not necessary that his negligence should have been the sole cause of the injury. His negligence may be the proximate cause, where it concurs with one or more causes in producing an injury, and, although the author or authors of such cause or causes may also be liable therefor.

29 Cyc. 492, 496; Susie B. Harrison v. Kansas City Elec. Light Co., 195 Mo. 606, 93 S.W. 951, 7 L. R. A. (N. S.) 293; Illinois Central Railroad v. Thomas, 109 Miss. 536, 68 So. 773.

It is not necessary that appellant's negligence should have been the sole proximate cause of appellee's injury in order that it may be liable for damages resulting therefrom.

Railroad Co. v. Siler, 229 Ill. 390, 82 N.E. 362, 15 L. R. A. (N. S.) 819, 11 Ann. Cas. 368; Liming v. Railroad Co., 81 Iowa 246, 47 N.W. 66; Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; Railroad Co. v. Smith, 103 Miss. 150, 60 So. 73; Mobile & Ohio Railroad Co. v. Stinson, 21 So. 522, 74 Miss. 453.

Burch, Minor & McKay, of Memphis, Tenn., and Percy, Strauss & Kellner and Percy & Farish, all of Greenville, for appellee.

We submit neither the circumstances of the burning in this case or the vagueness or silence of the testimony as to how, when and by whom the burning was started would justify any court or jury in finding the original act of burning the railroad right-of-way negligent.

There is no assumption of negligence in the facts of this case. Negligence must be proved by the plaintiff. We submit the proof falls far short of establishing that the railroad was responsible for a negligent starting of the fire, or for a negligent spreading of the fire, or for a failure to do all that was reasonable in attempting to control the fire after it had started.

Alexander says he could not see more than one foot ahead but did not sound his horn, turn on his lights (as to this the record is silent), lower his speed or keep his hand on the brake so it could be immediately used. This was conduct, not of a careful but of a reckless man. Such action was not to be anticipated by the railroad even if the smoke was due to its negligence; therefore, Alexander's negligence was an intervening, independent cause, the sole proximate cause of the injury.

Bufkin v. Louisville & N. R. Co., 137 So. 517.

Argued orally by Jerome S. Hafter, for appellant, and by Ernest Kellner, for appellee.

OPINION

McGowen, J.

Keith brought an action at law to recover damages for personal injuries sustained by him, and for the value of a motorcar wrecked in the collision in which he was injured. At the conclusion of the evidence of the appellant Keith, in the lower court, a peremptory instruction was granted for the appellee, Yazoo & Mississippi Valley Railroad Company.

Two propositions of law are submitted by the appellee, which, it contends, sustains the action of the lower court; First, that there was no negligence on the part of appellee; and, second, that the act complained of against the appellee was not the proximate cause of the injury of the appellant, Keith.

Keith, the appellant, was driving south on the public highway from Greenville to Wayside, Mississippi, which highway runs parallel with the right of way of the railroad company, and noticed ahead of him, across and enveloping the highway completely, a dense smoke, which arose from fire burning weeds, grass, and other organic matter on the right of way of the railroad company. The time was on an October morning, and the substances being burned were dry.

The evidence shows that the fire was set out by a foreman and crew of the railroad company in an effort to burn the grass from the right of way, conceived to be for the protection of the railroad and its...