Miss. Cent. R. Co. v. Smith, 31225

CourtMississippi Supreme Court
Citation173 Miss. 507,154 So. 533
Decision Date30 April 1934
PartiesMississippi Cent. R. Co. v. Smith.
Docket Number31225

154 So. 533

173 Miss. 507

Mississippi Cent. R. Co.
v.
Smith.

No. 31225

Supreme Court of Mississippi

April 30, 1934


(Division B.)

1. RAILROADS.

In action against railroad for injuries sustained when automobile in which plaintiff was riding collided with train at highway intersection, whether railroad was negligent held for jury.

2. RAILROADS.

Violation of statute requiring trains to sound bell or whistle on approaching highway intersection is negligence on part of railroad, and, if such negligence is proximate cause of injury, railroad is liable (Code 1930, secs. 6125, 6126).

[173 Miss. 508]

3. CONSTITUTIONAL LAW, Railroads.

Instruction that in arriving at verdict, in action for injuries sustained when automobile in which plaintiff was riding collided with train at highway intersection, jury should not consider fact that train was engaged in interstate commerce, held not erroneous as denying railroad equal protection of law and as depriving railroad of due process.

4. NEGLIGENCE.

Mississippi law governed collision between automobile and train at highway intersection, notwithstanding train was engaged in interstate commerce.

5. RAILROADS.

Instruction that train engineer had duty to keep proper and reasonable lookout on approaching crossing held proper in action for injuries sustained when automobile in which plaintiff was riding collided with train at highway intersection.

6. RAILROADS.

Instruction describing plaintiff, who sued for injuries sustained when automobile in which she was riding collided with train at highway intersection, as passenger held not erroneous where evidence showed that automobile was owned by plaintiff's brother-in-law and was driven by plaintiff's sister who invited plaintiff.

HON. R. L. CORBAN, Judge.

Action by Mrs. Mattie Rife Smith against the Mississippi Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

On suggestion of error, suggestion of error sustained in part, and affirmed with remittitur.

Brady, Dean & Hobbs, of Brookhaven, for appellant.

Appellant was entitled to a peremptory instruction.

The great preponderance of credible evidence establishes that the bell was ringing for at least one thousand feet and the crossing whistle blown. [173 Miss. 509]

There is no issue that the car was operated in a grossly negligent manner.

Sims v. McIntyre, 8 S. & M. 327; McQueen v. Bostwick, 12 S. & M. 604; Barbee v. Reese, 60 Miss. 906; Fore v. Railway, 87 Miss. 218, 39 So. 493, 600; Clarke v. Moyse, 48 So. 721; McFadden v. Buckley, 98 Miss. 28, 53 So. 351; Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113; G. & S. I. R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954.

There is no question of imputed negligence involved, but all negligence was negligence of appellee as well as of the driver.

This gross negligence was the sole proximate cause of the collision, independently of signals.

Pugh v. I. C. R. R. Co., 23 So. 356; Pietri v. L. & N. R. R. Co., 152 Miss. 185, 119 So. 164; M. & C. R. R. Co. v. Jobe, 69 Miss. 452, 10 So. 672; Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113; Railroad Co. v. Buford, 150 Miss. 832, 116 So. 817.

On the showing of this record there is no statutory negligence here. The prima facie statute of the state of Mississippi is not involved. All the facts are in evidence and the legal principles by which those facts are to be weighed are general, common law principles of negligence.

C. R.I. & P. R. R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Scofield v. C. M. & St. P. Railroad Co., 114 U.S. 615, 29 L.Ed. 224; N. P. Railroad Co. v. Freeman, 174 U.S. 389, 43 L.Ed. 1014; B. & O. Railroad Co. v. Goodman, 275 U.S. 66, 72 L.Ed. 167.

Appellant, whose rails are within one state but whose connections, as shown by contract for delivery, and actual carriage of goods in interstate commerce, generally and at the time of the accident in question, make it as truly an interstate carrier, and invest it with the same rights, as any road operating in the United States, even from coast to coast. To classify it differently by approving [173 Miss. 510] the instruction to the jury that it should not consider the question as to whether or not the applicant was engaged in interstate commerce at the time and place when and at which the injuries complained of by appellee occurred, thereby denying it the benefit of the standard laid down by the Supreme Court of the United States, would be to take away from it a title, right, privilege and immunity enjoyed by other citizens of the United States, would deny to it the equal protection of the law, and would deprive it of its property without due process of law, all in contravention and violation of section 1, article XIV, of the amendments to the constitution of the United States.

The verdict is excessive.

Y. & M. V. R. R. Co. v. Williams, 114 Miss. 236, 74 So. 835; G. N. & N. R. R. Co. v. Arrington, 107 So. 378; Bateman case, 162 Miss. 404; Vicksburg v. Scott, 168 So. 522; Galtney v. Wood, 149 Miss. 56, 63; Kennedy case, 167 Miss. 305, 314; 17 C. J. 1099; 46 So. 959.

There is no weight of evidence for appellee, there is no conflict in regard to visibility, the verdict of the jury was not based upon real evidence as to visibility, and is contrary to that which this court must accept because undisputed.

Full discussions of the admissibility of photographs as evidence appear in the following authorities:

55 A. L. R. 1343; 10 R. C. L. 1153; 22 C. J. 913; 22 Am. & Eng. Encyc. of Law, 774; 35 L. R. A. 808; 51 L. R. A. (N. S.) 853.

Appellee's own testimony does most clearly and positively commit her, in the words of this court, not only to the fact that she stopped, looked, proceeded, and was struck, but, also, that she looked from about ten feet within the stop sign, proceeded at a speed of between five and ten miles per hour, and did not cease to look, at least until just before they were struck. [173 Miss. 511]

The engineer, S. C. King, testified that the speed of the car was fast while the speed of the train was about twenty-five miles per hour. C. Q. Smith, the fireman, likewise testified that the speed of the train was about twenty-five miles per hour.

There is no basis in the record to increase the rate of speed of the train from twenty-five miles per hour to forty-five miles per hour, nor to diminish the speed of the automobile to two and one-half or three miles per hour. To do so arbitrarily would shock every sense of justice, even though it would still not support appellee's contention.

Traveler struck by a train at a road crossing will be deemed to have seen and heard an approaching train in time to have avoided injury, if he had opportunity to do so, though he testifies that, though he looked and listened, he did not see or hear the train.

Railroad Co. v. Batsel, 140 S.W. 726; Ry. Co. v. Williams, 137 S.W. 828; Peters v. Ry. Co., 135 Ala. 533, 33 So. 332; Zibbell v. Sou. Pac. Co., 160 Cal. 237, 116 P. 513; Westerkamp v. Railroad Co., 41 Colo. 290, 92 P. 687; Harten v. Railroad Co., 18 App. Cas. 260; Johnson v. Railroad Co., 61 Ill.App. 522; Railroad Company v. Kirby, 86 Ill.App. 57; Railroad Co. v. Gallagher, 109 Ill.App. 67; Railway Co. v. DeFrietas, 109 Ill.App. 104; Railroad Co. v. Vremeister, 112 Ill.App. 346; Railway Co. v. Hirsch, 132 Ill.App. 656; Railroad Co. v. Fraze, 150 Ind. 576, 65 A. S. R. 377, 50 N.E. 576; Railway Co. v. Baker, 104 S.W. 1182; Artz v. Railroad Co., 34 Iowa 153; Payne v. Railroad Co., 39 Iowa 523; Bloomfield v. Railway Co., 74 Iowa 607, 38 N.W. 431; Young v. Railway Co., 57 Kan. 134, 45 P. 583; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Blumenthal v. Railroad Co., 97 Me. 255, 54 A. 747; Day v. B. & M. R. R., 97 Me. 528, 55 A. 420; C. R.I. & P. R. R. Co. v. Houston, 95 U.S. 697; McCarthy v. Railroad Co., 90 A. 490, 54 L. R. A. (N. S.) 140; N. C. [173 Miss. 512] Ry. Co. v. Medairy, 86 Md. 168, 37 A. 796, 3 Am. Neg. Rep. 411; Railway Co. v. Beasley, 117 Md. 270, 83 A. 157; Carlson v. Railway Co., 296 Minn, 504, 105 N.W. 555, 113 A. S. R. 655, 4 L. R. A. (N. S.) 349; State v. Dettner, 27 S.W. 1117; Hook v. Railway Co., 162 Mo. 569, 63 S.W. 360; State v. Gurley, 70 S.W. 875; Barrie v. Co., 102 Mo.App. 87, 76 S.W. 706; Porter v. Railway Co., 199 Mo.App. 82, 97 S.W. 880; Schaub v. Railway Co., 133 Mo.App. 444, 113 S.W. 1163; Waggoner v. Railroad Co., 152 Mo.App. 173, 133 S.W. 68; Dolfini v. Railroad Co., 178 N.Y. 1, 70 N.E. 68; Fiddler v. R. R. Co., 64 A.D. 95, 71 N.Y.S. 721; Madigan v. Railroad Co., 74 N.Y.S. 143, 68 A.D. 123; Swart v. Railroad Co., 81 A.D. 402, 80 N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1131; McKinley v. Railway Co., 86 N.Y.S. 461, 91 A.D. 153; Stapp v. Railway Co., 29 N.Y.S. 1008, 80 Hun. 178; Belch v. Railroad Co., 36 N.Y.S. 56, 90 Hun. 477; Montenes v. Railway Co., 78 N.Y.S. 1059, 77 A.D. 493; Golden v. Railway Co., 98 N.Y.S. 848, 49 Mise. 521; O'Brien v. Railroad Co., 113 N.Y.S. 329, 129 A.D. 288; Railway Co. v. Elliott, 28 Ohio St. 340; Marland v. Railroad Co., 123 Pa. St. 487, 16 A. 624, 10 A. S. R. 541; Meyers v. Railroad Co., 150 Pa. 386, 24 A. 747; Urias v. Railroad Co., 152 Pa. 336, 25 A. 566; Holden v. Railroad Co., 169 Pa. 1, 32 A. 103; Railway Co. v. Wilson, 60 S.W. 438; Railway Co. v. Skinner, 119 Va. 843, 89 S.E. 887; Cawley v. Railway Co., 101 Wis. 145, 77 N.W. 179; Stafford v. R. R. Co., 110 Wis. 331, 85 N.W. 1036; Marshall v. R. R. Co., 125 Wis. 96, 103 N.W. 249; White v. Ry. Co., 147 Wis. 141, 133 N.W. 148; Railway Co. v. Smith, 40 L. R. A. 246, 86 F. 295, 30 C. C. A. 58; Railway Co. v. Andrews, 130 F. 65, 64 C. C. A. 399; Waters-Pierce Oil Co. v. Van Elderen, 137 F. 557, 70 C. C. A. 255; Railway Co. v. Collier, 157 F. 347; Railroad Co. v. Cundieff, 171 F. 319, 96 C. C. A. 211; Railroad Co. v. Hurlburt, 221 F. 907, 137 C. C. A. 477; Am. Car & [173 Miss. 513] Foundry Co. v. Kinderman, 216 F. 499, 132 C. C. A. 577; Hickey v. Railroad...

To continue reading

Request your trial
1 practice notes
  • Graves v. Hamilton, 33309
    • United States
    • United States State Supreme Court of Mississippi
    • October 31, 1938
    ...a certain element of inference. Johnson v. Graves, 179 Miss. 465, 176 So. 256; Miss. Cent. R. Co. v. Smith, 168 So. 604, 159 So. 562, 154 So. 533. [184 Miss. 242] In the present consideration of this case, we are fortified not only by "the law of the case" as announced in the opinion of Mr.......
1 cases
  • Graves v. Hamilton, 33309
    • United States
    • United States State Supreme Court of Mississippi
    • October 31, 1938
    ...a certain element of inference. Johnson v. Graves, 179 Miss. 465, 176 So. 256; Miss. Cent. R. Co. v. Smith, 168 So. 604, 159 So. 562, 154 So. 533. [184 Miss. 242] In the present consideration of this case, we are fortified not only by "the law of the case" as announced in the opinion of Mr.......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT