Mobile & O. R. Co. v. Johnson

Decision Date17 March 1930
Docket Number28417
PartiesMOBILE & O. R. CO. et al. v. JOHNSON
CourtMississippi Supreme Court

Division B

Suggestion of Error Overruled May 19, 1930.

APPEAL from circuit court of Prentiss county HON. C. P. LONG Judge.

Action by Annie Reynolds Johnson against the Mobile & Ohio Railroad Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Reversed and remanded.

W. C. Sweatt and Ely B. Mitchell, both of Corinth, for appellants.

As against positive affirmative evidence, by credible witnesses, that warning of the approach of a railroad train to a highway crossing was given by the ringing of the bell, or the blowing of the whistle, there must be something more than the testimony of the witnesses, who by reason of their surroundings would be unlikely to notice the giving of such warning, that they heard neither a bell rung, nor a whistle blown, in order to justify the submission to the jury of the question whether such warnings were given.

10 R. C. L., sec. 202, page 1011; Queen Ann. R. R. Co. v. Reed, 5 Penn. (Del.) 269, 119 Am. St. Rep. 301; Northern Central. R. R. Co. v. State, 100 Me. 404, 108 Am. St. Rep. 439; Foley v. N.Y. Central R. R. Co., 197 N.Y. 430, 18 Ann. Cas. 631; Chicago, etc., R. R. Co. v. Still, 19 Ill. 499, 71. Am. Dec. 236; Holmes v. Penn. R. R. Co., 74 N.J.L. 469, 12 Ann. Cas. 1031; Stitt v. Huidekoper, 7 Wall. 384, 21 L.Ed. 644; Philadelphia R. R. Co. v. Gatta, 4 Boyce (Del.) 38, 47 L.R.A. (N.S.) 932; Lockridge v. Minn. R. R. Co., 161 Ia. 74, Ann. Cas. 1916A, 158; In re Edmonson, 259 Pa. St. 429, 2 A.L.R. 1150; Nashville, etc., R. R. Co. v. Prince, 212 Ala. 499, 103 So. 463; Johnson v. Aetna Life Ins. Co., 158 Wis. 56, Ann. Cas. 1916E, 603; Ann Cas. 1916A, 164.

An instruction which placed upon the head brakeman the duty to keep a lookout and give signals by bell and whistle upon seeing a party approaching the track was erroneous where the engineer was on the lookout.

The law does not impose any duty on the engineer to scan the highway for travelers approaching the railroad track.

E. C. Sharp, of Jackson, and J. A. Cunningham and F. W. Cunningham, both of Booneville, for appellee.

An instruction that if the defendant company negligently violated the statute requiring them to either ring a bell of certain weight, or sound a whistle to be heard a certain distance, of three hundred yards, before they arrived at the crossing and that they did not keep such bell ringing or whistle blowing continuously until such crossing was passed, which negligence proximately contributed to the injury, that the jury should find for the plaintiff's was correct.

Section 7964, Hemingway's Code of 1927; Y. & M. V. R. R. Co. v. Lee, 114 So. 866; I. C. R. R. Co. v. Williams, 110 So. 511.

The jury had a perfect right to infer that when there were two men in the cab keeping a lookout and nothing in the way, that they ought to have seen this man approaching the crossing, and they have a perfect right to infer that one of them did see him, and this instruction is not error.

Yazoo & Mississippi Valley Railroad Company v. Lee, 114 So. 866; I. C. R. Co. v. Mann, 1012 So. 853; A. & V. R. Co. v. Kelly, 88. So. 707; Edward Hinds Yellow Pine Trustees v. Holly, 106 So. 822; M. & O. Railroad Company v. Watley, 13 So. 825; N. & O. M. C. R. Co. v. Harrison, 61 So. 655; I. C. R. R. Co. v. Williams, 110 So. 511.

Argued orally by Ely B. Mitchell, for appellant.

OPINION

Griffith, J.

At or near the unincorporated village of Leedy, in Tishomingo county, about ten-thirty on the morning of December 25, 1928, appellee's decedent, James L. Johnson, while going southward and driving a small touring car, with all the curtains up, attempted to cross the railroad tracks immediately in front of a rapidly moving east-bound freight train, and was instantly killed. Suit was instituted, and a verdict was returned and judgment entered against the railroad company for ten thousand dollars; hence this appeal.

Three grounds of negligence were alleged against the railroad company: That the public crossing where the injury occurred was constructed and maintained by the railroad company in a dangerous and negligent manner, that the statutory signals by the sounding of the locomotive whistle and the ringing of the bell were not given, and that the railroad company failed to exercise the precaution of a proper lookout upon approaching said crossing.

Touching the first point, the testimony was so overwhelming against the contention of appellee that the trial judge properly directed the jury that no verdict could be based on that allegation.

On the second point, eight of the eleven witnesses introduced by appellee testified that the signals by the whistle were given, to which is to be added the testimony of every one of the five witnesses for defendant, making thirteen out of sixteen witnesses who stated affirmatively that the signals by the steam whistle were given. The other three did not swear positively that the whistle was not sounded, but that they did not hear or did not remember, or did not notice in that regard. It must be accepted, therefore, as overwhelmingly shown, that the signals of the whistle were given. These whistle signals, however, were not continuous, and we must therefore inquire whether the bell was kept ringing for the statutory distance.

Two of the eleven witnesses for appellee said they heard neither the bell nor the whistle, but, it being established beyond a peradventure that the whistle was sounded, this eliminates these two witnesses. Three of appellee's witnesses testified affirmatively that the bell was ringing, and all five of appellant's witnesses swear likewise. As against these eight affirmative witnesses, the remaining six witnesses for appellee say they heard no bell. The first one of these said that he did not hear the bell, but would not undertake to say it was not ringing--that he did not know; the second witness, that she did not hear the bell, but that she would not assume to declare that it was not ringing--that she did not remember it; the third, that he did not notice about the bell, and did not hear any; the fourth, that he did not remember about a bell; the fifth, that he had no recollection about the bell; and, the sixth, that she paid no attention to the bell--did not notice it. Two of these witnesses were at a store about three hundred feet, one at a drug store, two others at other stores, these from two hundred to three hundred feet, and one was at home about two hundred feet, distant, and all were variously engaged, but nevertheless did observe that a train was passing.

Other than the three on the locomotive, the one witness who was in the nearest and best position to make distinct and impressive observation and to speak with actual knowledge and best remembrance was a young man who was at the little depot, located about five hundred feet from and to the west of the crossing. This witness testified that the bell was ringing when the train passed the depot and continued to ring. The engineer and the fireman, as well as the head brakeman who was on the locomotive, testified that the bell was set ringing at the crossing signal post, which is one thousand two hundred and forty-two feet from the crossing. The bell operated automatically by air pressure, and would necessarily continue thus to operate until the air valve was turned to cut it off. As stated, eight witnesses testified affirmatively that the bell was ringing, and, since the purpose in setting it to ring was to continue its operation until the crossing was reached, there could be no sort of reason for taking the untimely trouble of an affirmative action to cut it off earlier, or to believe that such was done. The inquiry thus narrows to the point whether the affirmative testimony of the eight witnesses that the bell was ringing was sufficient in weight to overwhelm the negative testimony of the six witnesses who were at a distance of from two hundred to three hundred feet, and who generally say they did not notice as to the bell.

Negative testimony rises or declines in the scale of probative weight according to the opportunity of the negative witnesses to hear and observe; whether their attention was directed to or diverted from the fact in issue; whether the particular fact was an unusual or only a general or common occurrence in the daily routine of their lives; whether the particular witness was normal in sense of hearing and sight; and whether observant or indifferent to details. So varied are the circumstances of the cases in these and in other intimately related respects that it has been the common course in this court to leave such questions in full measure to the determination of the jury, and this rule has been equally applied to this particular class of cases. Se...

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