Mississippi Cent. R. Co. v. Alexander

Decision Date12 February 1934
Docket Number31043
Citation152 So. 653,169 Miss. 620
CourtMississippi Supreme Court
PartiesMISSISSIPPI CENT. R. CO. v. ALEXANDER

Division A

1 RAILROADS.

In suit by automobile passenger for injuries received when crossing railroad tracks, evidence warranted finding that portion of crossing between rails was not properly maintained by railroad as required by statute (Code 1930, section 6127).

2 RAILROADS. Statute requiring railroad constructing tracks across highways to construct and maintain convenient crossings held applicable to streets within incorporated municipality (Code 1930, section 6127).

The word "highway" is a generic term for all kinds of public ways over land or water, and, as used in Code 1930 section 6127), requiring a railroad constructing tracks across highways to construct and maintain convenient crossings, is limited to public ways over land, and means a way open to the people without distinction for passage or repassage at their pleasure.

3 RAILROADS.

Statute requiring railroad constructing tracks across highways to construct and maintain convenient crossings, imposes public duty on railroads, violation of which entitles person injured thereby, while traveling on highway, to recover (Code 1930, section 6127).

4. RAILROADS.

Notice to railroad of defective railroad crossing required by statute providing that railroad constructing tracks across highways must construct and maintain convenient crossings, relates to notice by county board of supervisors and not to private individuals (Code 1930, section 6127).

5. RAILROADS.

Under statute requiring railroad constructing tracks "so as to cross" highways to construct and maintain convenient crossings, railroad held not absolved from liability to one injured because of defective crossing because track was constructed before highway (Code 1930, section 6127).

6. RAILROADS.

City could not relieve railroad of duty imposed by statute to maintain crossings (Code 1930, section 6127).

7. RAILROADS.

Statute requiring railroad constructing tracks across highways to construct and maintain convenient crossings, is not restricted to cases where it is necessary to raise or lower highway (Code 1930, section 6127).

8. RAILROADS.

Railroad's liability for personal injuries caused by defect in crossing held not affected by fact that dirt or gravel was washed from crossing in absence of showing that washing was caused by unprecedented flood, and that railroad had exercised due care (Code 1930, section 6127).

9. AUTOMOBILES. Railroads.

Negligence of railroad in failing to maintain crossing and negligence of motorist in driving at thirty to thirty-five miles per hour held proximate cause of injuries to automobile passenger (Code 1930, section 6127).

10. APPEAL AND ERROR.

In consolidated actions against railroad and against city by automobile passenger injured because of defect in grade crossing, direction of verdict for city held not prejudicial to railroad which had statutory duty to maintain crossings as concerned rights of public (Code 1930, section 6127).

11. EVIDENCE.

Failure of physician, shown to have graduated from medical college and practiced several years, to record license as required by statute on removing from one county to another, held not to affect his qualifications as expert in personal injury action (Code 1930, section 5854).

12. DAMAGES.

Ten thousand dollars for injuries consisting of either broken or dislocated spine, necessitating steel brace or adhesive tape to alleviate pain and disqualifying injured person from any labor, held not excessive.

HON. W. J. PACK, Judge.

APPEAL from circuit court of Forrest county, HON. W. J. PACK, Judge.

Action by J. D. Alexander against the Mississippi Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Hannah & Simrall, of Hattiesburg, and T. Brady, Jr., of Brookhaven, for appellant.

Irrespective of whether or not the crossing was in good condition, the injury to the appellee was due to the fact that V. R. Croswell drove over the same at a rate of speed largely in excess of that permitted by law, and the said negligence on the part of said V. R. Croswell was an intervening, independent, efficient cause, which said unlawful, careless and reckless rate of speed insulated the injury from the negligence, if any, of this appellant.

Public Service Corporation v. Watts, 150 So. 192.

Section 6127, Code of 1930, has absolutely no application to the case at bar because said code section applies only to highways or public roads outside of municipalities and has no application whatever to city streets.

Mobile & Ohio Railroad v. State, 51 Miss. 317.

Section 6127, Code of 1930, does not apply because there was an agreement and written contract between the appellant here and the city of Hattiesburg with respect to said street crossing.

By the very language of said section of the code there is no duty imposed upon a railroad company with respect to maintaining a highway crossing, except and unless two conditions obtain; (1) that the railroad be constructed so as to cross a highway, and (2) it be necessary to raise or lower the highway, and neither of these conditions obtained in the case at bar. In other words, said section of the code has no application whatever to a case, where, as in the case at bar, a street is so constructed as to cross over a railroad that is already built.

The statute authorizes and empowers the county to institute a suit for the breach of duty imposed, but does not authorize the appellee or any other individual to maintain such a suit, and particularly is this appellee without right or authority to institute and maintain a suit under this statute under the facts of this particular case.

Illinois Central Railroad Co. v. Swalm, 83 Miss. 631, 36 So. 147; New Orleans Great Northern Railroad Co. v. McGowen, 111 Miss. 181, 71 So. 317.

It is the province of the Legislature to make the laws, and only the province of the court to interpret and apply the laws which the Legislature makes. When the Legislature uses such language as to leave a doubt as to what was intended, it then becomes necessary for the court to indulge in speculation as to what was meant and intended and resort to reason and comparisons to settle this doubt. But when the Legislature uses language that does not create or leave a doubt as to what was intended, the only province of the court is to apply what the Legislature has said. Under circumstances no "interpretation" is necessary.

As to whether or not this code section applies to the railroad-street crossing in the case at bar, we respectfully submit that the very language of the statute is so clear as to leave no doubt that it does not apply.

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

The crossing in question was, as a matter of law, sufficient because: (a) There was enough of the crossing good, to classify the entire crossing as a good one; and (b) all of the crossing was good at lawful speeds.

When the city of Hattiesburg became interested in the extension of Fourth street, there were three ways in which this might be accomplished: (a) It might purchase outright the necessary way, (b) it might condemn, or (c) it might acquire the right upon conditions. Had it purchased outright, or had it condemned, then we may concede here, for the sake of argument (although it is demonstrated in associate counsel's brief that it has no application to city streets under any circumstances), that section 6127 of the code might apply. When, however, it acquired a right to extend, as well as to cross, upon definitely stipulated terms, conditions and restrictions, then an entirely different situation arose.

The city had ample authority to enter into such a contract, under sections 5811 (particularly, paragraphs "second" and "fourth"), 5843 and 5835 of Hemingway's 1917 Code, which appear unchanged in sections 2391, 2413 and 2414 of the 1930 Code.

Kimball v. Jackson, 118 Miss. 789, 80 So. 3; I. C. R. R. Co. v. State, 94 Miss. 759, 48 So. 561.

Even if section 6127 applied, appellant had complied with it. By instructions shown on pages 51 and 52 of the record the court instructed the jury for the appellant that if there was any portion of Fourth street wide enough for travel, where it crosses the railroad track, by persons using ordinary care and prudence, even though there may have been holes between the rails and the rails were exposed, then appellee could not recover.

G. & S. I. R. R. Co. v. Simmons, 150 Miss. 506, 117 So. 345; Atkinson v. Decatur, 131 Miss. 707, 95 So. 689.

Currie & Currie, of Hattiesburg, for appellee.

Negligence in the conduct or act will not be imputed to one who neither authorized such conduct nor participated therein, nor had the right or power to control it.

Rogers v. Saxton, 305 Pa. 479, 158 A. 166; Columbus & Greenville R. R. Co. v. Lee, 115 So. 782; Railroad Co. v. Davis, 69 Miss. 444, 13 So. 693; Hines v. McCullers, 121 Miss. 666, 83 So. 734; Coccora v. Vicksburg Light & Traction Co., 126 Miss. 713, 89 So. 257; Y. & M. V. R. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; Watson on Damages for Personal Injuries, p. 213, par. 166; San Antonio & A. & P. R. R. Co. v. Trigo et al., 108 S.W. 1193; Texas & N. O. R. R. Co. v. Bellar et ux., 112 S.W. 323.

To constitute a negligent act the proximate cause of an injury it is not necessary that it be the sole cause, but it is sufficient if it is a concurring cause from which the result might reasonably have been contemplated as involving the result which actually happened under the circumstances, it not being necessary that the injury in the precise form in which it in fact resulted should have been foreseen; it...

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