Krebs v. Pascagoula Street Railway & Power Co

• Decision Date: 11 March 1918
• Citation: Krebs v. Pascagoula Street Railway & Power Co, 78 So. 753, 117 Miss. 771 (Miss. 1918)
• Parties: KREBS v. PASCAGOULA STREET RAILWAY & POWER CO
• Court: Mississippi Supreme Court

78 So. 753

117 Miss. 771

KREBS v. PASCAGOULA STREET RAILWAY & POWER CO

Supreme Court of Mississippi

March 11, 1918

March 1918

Division A

APPEAL from the circuit court of Jackson county, HON. JAMES H NEVILLE, Judge.

Suit by T. H. Krebs against the Pascagoula Street Railway & Power Company. From a judgment for defendant, plaintiff appeals.

T. H Krebs, appellant here, plaintiff below, filed this suit in the circuit court of Jackson county against the Pascagoula Street Railway & Power Company, appellee here, defendant below, seeking to recover damages for injuries to a Saxon automobile received in a collision between the automobile and appellee's street car. From a verdict and judgment in the lower court in favor of the appellee, the appellant appeals to this court.

The town of Moss Point and Pascagoula are connected by a highway known as the Telephone Road. These two towns are also connected by appellee's interurban electric street car line. At a certain point between these two towns this highway and this street car line cross at one and the same grade. On the day of this occurrence the appellant allowed one R. A Smith the use of his automobile for making the trip from Moss Point to Pascagoula. Smith's route to Pascagoula lay along this highway. When the automobile approached to within about fifty feet of this grade crossing, Smith, who was driving the automobile, saw one of the appellee's electric street cars also approaching the crossing and then about seventy-five feet from the same. Smith made no determined effort to stop the automobile, which was then running at the rate of between fifteen and twenty miles per hour, but attempted to beat the street car to the crossing, and to cross ahead of it. When the motorman in charge of the street car first saw the automobile, he applied the brakes and did all he could to bring his car to a stop, but without avail. The car and automobile collided at the crossing, and as a result of this collision the automobile was damaged. Neither the exact speed at which the street car was going as it approached the crossing, nor its distance from the crossing, when the automobile was first seen by the motorman, is shown. It was shown, however, that the street car was going fast, and that the distance was short. Chapter 135, Laws 1910 (Hemingway's Code, sections 502, 503), is as follows:

"In all actions hereafter brought for personal injuries or where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured.

"Sec. 2. All questions of negligence and contributory negligence shall be for the jury to determine."

Affirmed.

Heidelburg & Denny, for appellant.

On page 5 of counsel for appellee's brief, in the first paragraph of the argument, he cites the contributory negligence Act of 1910, and says that it has no application in this case. This is chapter 105, of the Laws of 1910, and section 1 of said act really bears out the statement of counsel for appellee. Section 2 thereof says that: "All questions of negligence, or contributory negligence shall be for the jury to determine."

Furthermore, we would call the court's attention to chapter 215 of the Laws of 1912, in which we find these words: "In all actions against railroad corporations and all other corporations, companies, partnerships or individuals, using engines, locomotives and cars of any kinds or other appliances propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, for damages done to persons or property, proof of the injury inflicted by running the engines or locomotives or cars, etc., shall be prima-facie evidence of the want of skill and care of such other corporation or partnership in reference to such injury."

Now, this statute clearly fixes the matter insofar as our state is concerned, and we submit that the two statutes make the same plain, and leave the status of this case as we contend in the original brief. The court should have left the same, to wit: That it should have been given to the jury to have been passed upon.

In the case cited by counsel for appellee for the Alabama & Vicksburg Railroad Company v. Thornhill, we find these words, 106 Miss., page 387: "Ordinarily where there was any injury so the result of its negligence depends upon the inference to be drawn from the facts and circumstances under which it was inflicted this statute relieves the party from proving the facts and circumstances by proving the injury it shall be prima-facie evidence of negligence. In other words, by proving that the inference, or presumption of negligence must be drawn from the mere infliction of injury.

Since this presumption is a prima-facie one it must yield, as do all such presumptions, to the proof, that is to the inference of negligence vel non proper to be drawn from the facts and circumstances under which the injury was inflicted.

A presumption created only for the purpose of supplying prima-facie an inference that might be drawn from the fact, were that fact known, disappears and cannot be resorted to when the fact becomes known, and thereafter such inferences can be drawn only in the event the fact warrants it."

Counsel for appellee cited numerous decisions and authorities claiming to sustain his contention, but we submit that after an examination, and upon the facts in this record, that this case should be reversed and sent back for submission to a jury. There is an irreconcilable conflict in the testimony, and under the law and facts, we submit that we are entitled to a reversal, and have the case submitted to a jury.

White & Ford, for appellee.

It will be noted at the outset...