Mobile & O. R. Co. v. Johnson, 28417

• Court: Mississippi Supreme Court
• Writing for the Court: Griffith, J.
• Citation: 157 Miss. 266,126 So. 827
• Parties: MOBILE & O. R. CO. et al. v. JOHNSON
• Docket Number: 28417
• Decision Date: 17 March 1930

126 So. 827

157 Miss. 266

MOBILE & O. R. CO. et al.
v.
JOHNSON

No. 28417

Supreme Court of Mississippi

March 17, 1930

Division B

Suggestion of Error Overruled May 19, 1930.

APPEAL from circuit court of Prentiss county HON. C. P. LONG, Judge. [157 Miss. 267]

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

[157 Miss. 268] 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 [157 Miss. 269] 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 [157 Miss. 270] 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...