Magers v. Okolona, Houston & Calhoun City R. Co

• Decision Date: 20 January 1936
• Docket Number: 31911
• Citation: 165 So. 416,174 Miss. 860
• Parties: MAGERS v. OKOLONA, HOUSTON & CALHOUN CITY R. CO
• Court: Mississippi Supreme Court

165 So. 416

174 Miss. 860

MAGERS v. OKOLONA, HOUSTON & CALHOUN CITY R. CO

No. 31911

Supreme Court of Mississippi

January 20, 1936

Division A

Suggestion Of Error Overruled March 16, 1936.

APPEAL from the circuit court of Calhoun county HON. TAYLOR H. MCELROY, Judge.

Action by Mrs. Effie Magers against the Okolona, Houston &amp Calhoun City Railroad Company. From an adverse judgment, the plaintiff appeals. Reversed and remanded.

Reversed and remanded.

W. O. Lawrence, of Calhoun City, and Creekmore, Creekmore & Capers, of Jackson, for appellant.

The obstruction of the highway crossing for thirty hours was negligence on the part of the defendant.

A partial blockade or obstruction of a street by a railroad train is negligence.

Vicksburg & Meridian Railroad Co. v. Alexander, 62 Miss. 496; Terry v. N. O. & G. N. R. R. Co., 103 Miss. 679, 60 So. 729; Jarrell v. New Orleans & N. E. Railroad Co., 109 Miss. 49, 67 So. 659; Southern Railroad Co. v. Floyd, 99 Miss. 519, 55. So. 287; 52 C. J., Railroads, sec. 1781; St. Louis, etc., R. R. Co. v. Thompson, 30 F.2d 586.

It was a question for the jury to pass upon under the circumstances of this case.

St. Louis, etc., Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215; Edwards v. Carolina Ry. Co., 52 S.E. 234.

We think the railroad company should have anticipated that some injury would have resulted from the placing of the gravel car in the highway. Of course, it is not necessary that it should have anticipated the particular injury that occurred.

Telephone Co. v. Woodham, 99 Miss. 318, 54 So. 890; Keith v. Y. & M. V. R. R. Co., 168 Miss. 519, 151 So. 916.

It is well settled in Mississippi that where a peremptory instruction is given the losing party is entitled, upon the review of the action of the court, to have all facts in his favor considered as true, and a peremptory instruction is proper only in cases where, with all facts in evidence taken as true, with every inference from them, they fail to maintain the issue.

Farmer v. Cumberland Tel. Co., 86 Miss. 55, 38 So. 733.

It is argued that even if the car was in the highway it was not in that portion of the highway recognized by the public as being the highway. We think this is begging the question for if it was in the traveled portion of the highway the, railroad was guilty of negligence and responsible for any damage occasioned by such negligence. We again call the court's attention to the proof which was to the effect that the car was in the traveled portion of the highway.

It is not necessary that the negligence of the railroad company should be the sole proximate cause of the injury, but if it was a contributory proximate cause still the company is liable. It matters not that the deceased may have been going more than twenty miles an hour, because such negligence would be only contributory negligence and would not bar a recovery.

The testimony shows, without contradiction, that the gondola car was many feet in the traveled portion of the highway; that it was a partial obstruction of the traveled portion of the highway; not in the legitimate conduct of the business of the railroad company; that under the peculiar facts in this case the testimony was sufficient to make a jury question as to the cause of the accident.

Eugene B. Ethridge, of Memphis, Tenn., for appellee.

The gondola did not extend into the highway; it created no obstruction whatsoever and hence the appellee was guilty of no degree of negligence.

The evidence shows without contradiction that Magers violated section 6124 of the Code of 1930 in failing to stop his car "at a distance of not less than ten feet nor more than fifty feet from the nearest track;" and the evidence shows without conflict that Magers violated section 5569 of the Code of 1930 in that he drove "so as to endanger the life or limb of any person or the safety of any property" in that he drove on a "public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than twenty miles an hour."

G. M. & N. R. Co. v. Holifield, 120 So. 750, 152 Miss. 674; St. Louis-San Francisco Ry. Co. v. Guthrie, 114 So. 215, 216 Ala. 613, 56 A.L.R. 1110; Gilman v. Central Vermont Ry. Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102; Gage. v. Boston & Main Railroad Co., 90 A. 855, L.R.A. 1915A, 363; Davis v. Chicago, M. & St. P. R. Co., 93 Wis. 470, 33 L.R.A. 654, 57 Am. St. Rep. 935, 67 N.W. 16, 19, 1132, 10 Am. Neg. Cas. 507.

Even though appellee was negligent, its negligence was not the proximate cause of the accident.

Lauson v. Fond Du Lac, 141 Wis. 57, 25 L.R.A. (N.S.) 40, 135 Am. St. Rep. 30, 123 N.W. 629; New York, C. & H. R. R. Co. v. Maidment, 21 L.R.A. (N.S.) 794, 92 C. C. A. 413, 168 F. 21; Sublett v. Mobile & O. R. Co., 145 Ky. 707, 38 L.R.A. (N.S.) 1153, 141 S.W. 50; Minneapolis Street R. Co. v. Odegaard, 104 C. C. A. 496, 182 F. 56; Wabash R. Co. v. Coker, 81 Ill.App. 660; Gilman v. Noyes, 57 N.H. 627; Thomas v. Quartermaine, L. R, 18 Q. B. Div. 685, 56 L. J. Q. B. (N.S.) 340, 57 L. T. (N.S.) 537, 35 Week. Rep. 555, 51 J. P. 516; Hanson v. Manchester Street R. Co., 73 N.H. 395, 62 A. 595; Nashua Iron & Steel Co. v. Worchester & N. R. Co., 62 N.H. 159; Noyes v. Boscawen, 64 N.H. 361, 10 Am. St. Rep. 410, 10 A. 690; 2 Cooley, Torts (3 Ed.) 1475; Willfond v. Omaha & St. L. R. Co., 116 Iowa 548, 90 N.W. 358; Chicago, S. F. & C. R. Co. v. Bentz, 38 Ill.App. 485; Storm v. Cleveland, C. C. & St. L. R. Co., 156 Ill.App. 88; Miller v. Louisville, N. A. & G. R. Co., 128 Ind. 97, 25 Am. St. Rep. 416, 27 N.E. 339; Brannen v. Kokomo, G. & J. Gravel Road Co., 115 Ind. 115, 7 Am. St. Rep. 411, 17 N.E. 202; Aurelius v. Lake Erie & W. R. Co., 19 Ind.App. 584, 49 N.E. 857; Lake Shore & M. S. R. Co. v. Boyts, 16 Ind.App. 640, 45 N.E. 812; Missouri, K. & T. R. Co. v. Bussey, 66 Kan. 735, 71 P. 261; Bush v. Union P. R. Co., 62 Kan. 709, 64 P. 624; Smith v. Maine C. R. Co., 87 Me. 339, 32 A. 967; Allyn v. Boston & A. R. Co., 105 Mass. 77; Fechley v. Springfield Traction Co., 119 Mo.App. 358, 96 S.W. 421.

The view generally taken is that the presence of a train or cars at a crossing is sufficient notice of obstruction and of danger, that the railroad company is not bound to give any further warning as to the presence of such obstruction, and that the trainmen have a right to assume that the operator of the vehicle will act in a reasonable way to avoid a collision. So even when it is dark the mere failure to give warning of such obstruction is not necessarily an act of negligence, notwithstanding, according to some cases, the obstruction is unreasonably prolonged, and the railroad company is not chargeable with negligence for failure to give a warning where conditions are not such that the employees in charge of the train, in the exercise of reasonable care, should anticipate that because of the darkness persons traveling along the highway in vehicles properly equipped with lights and operated with due care would be likely to come into collision with the obstruction.

52 C. J. 190, sec. 1782; G. & M. N. R. R. Co. v. Kennard, 145 So. 110, 164 Miss. 380; Spilman v. G. & S. I. R. Co., 163 So. 445.

The negligence of decedent was the sole and proximate cause of the collision and ensuing death.

Slaughter v. Holsomback, 147 So. 318, 165 Miss. 161.

Stovall & Stovall, of Okolona, for appellee.

The gondola freight car with which appellant's intestate collided resulting in his death was not in the traveled portion of state highway No. 9, which was some twenty-four to twenty-six feet wide.

We submit that in the instant case the facts and circumstances alleged and proven did not place upon the appellee any duty to have a light upon its gondola car or over its track at the place of the accident; that the way was properly lighted by the automobile lights of deceased's car and that he alone was to blame for his death.

A user of vehicles is not entitled to the entire street from property line to property line.

Miss. Power Co. v. Sellers, 133 So. 594.

The employees of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at a reasonable rate of speed will observe the cars upon the crossing in time to avoid coming into collision with them.

St. L. & S. F. R. R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215; G. M. & N. R. Co. v. Holifield, 120 So. 750; G. M. & N. R. Co. v. Kennard, 145 So. 110; Spilman v. G. & S. I. Ry., 163 So. 445.

We submit that if there was any negligence on the part of the defendant as to the place the gondola car was placed it was too remote and not the proximate cause of of the injury complained of, but that the negligence of the plaintiff was the sole proximate cause of the collision which resulted in his death, as was held by the learned trial judge.

Southern Ry. Co. v. Lambert, 160 So. 262.

Defendant's act, even though it could be considered blameworthy, only created a passive antecedent condition. The appellant's intestate's unlawful act was the active agency which finally brought about the result and we submit the suit must fail, because the violation of the speed law under the attendant circumstances, that is, drinking whiskey and knowledge or topography of road and crossing, was the immediate and proximate cause of the damage.

Hendley v. C. & N.W. Ry., 225. N.W. 205.

Argued orally by Hiram H. Creekmore and Walter W. Capers, for appellant, and by Eugene B. Ethridge, and R. C. Stovall, for appellee.

OPINION

McGowen, J.

Mrs Effie Magers, on behalf of herself and her children, brought an action against the railroad company for damages alleged to have accrued by reason of the death of Allen Magers, their son and brother, respectively, who was...