Louisville & N. R. Co. v. Crominarity

Decision Date12 June 1905
PartiesLOUISVILLE & NASHVILLE RAILROAD COMPANY v. LEMUEL P. CROMINARITY
CourtMississippi Supreme Court

FROM the circuit court of Harrison county, HON. WILLIAM T McDONALD, Judge.

Crominarity the appellee, was plaintiff, and the railroad company, the appellant, defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Plaintiff's declaration alleged "that by and through the negligence and improper conduct of the defendant corporation, by its said agents and servants in that behalf, in running a train of cars and locomotive at a greater rate of speed than six miles per hour, and its failure to ring a bell or blow a whistle, plaintiff thus receiving no warning of the approach of the said train, plaintiff was unable to get his horse a safe distance from said track before said train crossed said street, and said train then and there ran so close to said carriage that the engine and cars ran right up to the nostrils of plaintiff's horse, just grazing said nostrils, and that the concussion and frightful rate of speed of said engine and cars caused the horse pulling said carriage to become so frightened and unmanageable as to then and there suddenly turn--plaintiff being unable to manage him, although using all means at his command--thereby turning over the carriage and throwing plaintiff out upon the ground with great violence and force, so that plaintiff was greatly bruised, hurt, and wounded." The declaration also alleged that this occurred in the corporate limits of the city of Biloxi, at a much-frequented street crossing. Plaintiff's evidence was to the effect that plaintiff was driving a gentle horse, approaching the crossing on Reynoir street (the most-frequented street in Biloxi, the crossing being near the railroad depot), on Sunday morning about eleven o'clock, when no train was scheduled to pass; that the defendant company had placed box cars along the railroad on both sides of the street, just leaving the width of the street open, and greatly obstructing the view of the railroad tracks; that, on approaching the crossing, plaintiff slowed up and looked and listened for a train, but did not stop that he heard no train, and saw none, and when his horse's head got within about six feet of the track, a train dashed by, running about thirty-five miles an hour without ringing a bell or blowing a whistle, and frightened the horse, which suddenly turned, throwing plaintiff out of the buggy and injuring him.

The following instructions asked by the defendant were refused by the court:

"1. The court charges the jury that the burden is upon the plaintiff to reasonably satisfy them that the fact that the train was running more than six miles an hour frightened the horse and caused him to turn. If you are not reasonably satisfied of this, you should find a verdict for defendant.

"2. If the jury are not reasonably satisfied from the evidence whether the horse would or would not have behaved in the same way, had the train been running at the rate of six miles an hour or less, they ought to find a verdict for the defendant.

"3. The court charges the jury that the burden is on the plaintiff to reasonably satisfy them that the fact that the train was running more than six miles an hour frightened the horse and caused him to turn, and if he has failed to reasonably satisfy you of this, you ought to find a verdict for defendant.

"4. If the jury are not reasonably satisfied from the evidence whether the horse would or would not have behaved in the same way, had the train been running at the rate of six miles an hour or less, they ought to find a verdict for defendant. "

Judgment affirmed.

Gregory L. Smith, and J. W. Goldsby, for appellant.

L. H. Dory, and J. H. Mize, for appellee.

OPINION

TRULY, J.

The declaration in this cause predicates the right of recovery for the injury inflicted upon the negligence of the appellant, consisting of two distinct and different, though combined and concurrent, constituents. The first ground of negligence averred is the running of a train through an incorporated city at a rate of speed far exceeding the statutory limit. The second...

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27 cases
  • Columbus & Greenville R. Co. v. Lee
    • United States
    • Mississippi Supreme Court
    • 27 Febrero 1928
    ... ... necessary to ascertain whether a train was approaching before ... driving on the track. Louisville, etc., R. R. Co. v ... Crominarity, 38 So. 633, 86 Miss. 464; ... Hopson v. Railroad Co., 87 Miss. 789, 40 ... So. 872; Skipworth v ... ...
  • Gulf, M. & N. R. Co. v. Brown
    • United States
    • Mississippi Supreme Court
    • 23 Febrero 1925
    ...approaching train. The peculiar conditions that may remove the conclusive imputation of negligence are illustrated by the Crominarity case, 86 Miss. 464, 38 So. 633, and by Hopson case, supra. As to the gross negligence of H. N. Brown, the driver of the car, measured by the established rule......
  • Thompson v. Mississippi Cent. R. Co
    • United States
    • Mississippi Supreme Court
    • 9 Marzo 1936
    ... ... Travelers ... on the highway have a right to insist that signals be given ... L. & ... N. R. R. Co. v. Crominarity, 86 Miss. 476, 38 So ... A ... traveler has the right to demand the giving of the statutory ... signals of blowing a whistle or the ... 563] ... them, resulting in an injury to them and the wagon, the ... company was liable for damages. See, also, Louisville, ... etc., R. Co. v. Crominarity, 86 Miss. 464, 38 So. 633, ... 634, where the court, speaking through Judge Truly, said that ... "What ... ...
  • Mississippi Cent. R. Co. v. Aultman
    • United States
    • Mississippi Supreme Court
    • 8 Abril 1935
    ... ... anything on the subject, and we merely refer the court to the ... following additional cases: ... R ... R. v. Crominarity, 86 Miss. 464, 38 So. 633; ... Skipwith v. Railroad, 95 Miss. 50, 48 So. 964; ... Fuller v. R. R., 100 Miss. 705, 56 So. 783; ... Railroad ... ...
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