Louisville & Nashville Railroad Co. v. Dick
| Decision Date | 22 February 1909 |
| Citation | 95 Miss. 111,48 So. 401 |
| Parties | LOUISVILLE & NASHVILLE RAILROAD COMPANY v. FRANK M. DICK |
| Court | Mississippi Supreme Court |
March 1909
FROM the circuit court of Jackson county, HON. WILLIAM H. HARDY Judge.
Dick appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.
Plaintiff was driving his horse and wagon along a street of the town of Ocean-Springs, Mississippi, which crossed the defendant's railroad track, and while passing over the railroad track, at a crossing within municipal limits was struck by defendant's moving train, was injured in his person and his property was seriously damaged. There was a conflict in the testimony touching the rate of speed at which the train was running at the time of and just before the injury, the witnesses estimating its speed variously, some testifying that it was moving much faster than six miles an hour, while others affirmed that when plaintiff's danger was discovered it was not running over five miles per hour and at a much less speed when he was struck, but all practically admitted that its, speed had exceeded six miles an hour within the limits of the town previously to the time when plaintiff's danger was discovered.
The fifth instruction asked by plaintiff and given by the court below, was in these words: "If from the evidence the jury believe that the plaintiff in attempting to cross the defendant's track on a public street was struck by defendant's train, and that at the time of the collision the train was running less than six miles per hour but that before the collision and within the corporate limits of Ocean Springs, said train had been running at a greater rate of speed than six miles an hour and that, if during the entire time said train was within the corporate limits of said town it had been running at the rate of speed not greater than six miles per hour the collision would not have happened, then defendant is guilty of negligence and is responsible for the injury unless the plaintiff was guilty of contributory negligence."
Reversed and remanded.
Gregory L. Smith, for appellant.
The giving of charge number five requested by the plaintiff was error. By this charge the court instructed the jury that if the train, at the time of the collision, was running less than six miles an hour, but that before the collision and within the corporate limits of Ocean Springs, said train had been running at a greater rate of sped than six miles an hour, and that if during the entire time said train was within the corporate limits of said town it had been running at a rate of speed not greater than six miles an hour, the collision would not have happened, then the defendant was guilty of negligence and was responsible for the injury unless plaintiff was guilty of contributory negligence.
Such proposition is not within the letter or the spirit of the statute. The statute (section 4043) provides that: "The company shall be liable for any damage or injury which may be sustained by an one from such locomotive or cars whilst they are running at a greater rate of speed than six miles an hour through any city, town or village."
The purpose of the statute was to require trains to be run within the corporate limits at such a rate of speed as to enable them to be stopped or checked upon the appearance of danger; if, because they are being run at a greater rate of speed, they cannot be stopped and injury results, the injury is inflicted while running at a greater rate of speed within the meaning of the act, though such speed may have been reduced below statutory rate after danger had become apparent and in an effort on the part of those in charge of the train to avoid the danger. N. O. R. Co. v. Toulme, 59 Miss. 89.
But if, at the time the danger becomes imminent, the train is not running at a greater rate of speed than six miles an hour, then the fact that at some prior time it had been running within the corporate limits of the same city at a greater rate of speed does not add to the difficulty in checking or stopping the train when a danger is encountered. The theory that the railroad is liable because, except for such prior rate of speed, the train would not have reached the place of accident and that, therefore, such excessive speed is the cause of the accident is not maintainable upon principle. Such prior speed is but the remote and not the proximate cause of the injury. If the construction contended for were a proper one, then a railroad would be liable for an accident in one city because it ran at a greater rate of speed in another, for except for such rate of speed, it would not have reached the place of accident at the time that the accident occurred.
A railroad is no more liable for an injury arising from running its train at a rate of...
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