Mobile & O. R. Co. v. Johnson

• Decision Date: 09 May 1932
• Docket Number: 29908
• Parties: MOBILE & O. R. Co. et al. v. JOHNSON
• Court: Mississippi Supreme Court

141 So. 581

165 Miss. 397

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

No. 29908

Supreme Court of Mississippi, Division B

May 9, 1932

(Division B.)

1 RAILROADS.

Enginemen in approaching railroad crossing are not required to keep lookout beyond right of way and anticipate that automobile driver will not stop, look, and listen.

2 TRIAL. Circumstances under which defendant is not entitled to peremptory instruction stated.

Defendant is not entitled to peremptory instruction, where, laying aside and leaving out of view the testimony in behalf of defendant, evidence in plaintiff's behalf is sufficient in law to establish legal right of plaintiff in issue, and is not inconsistent with admitted physical facts or with natural laws or common knowledge, and plaintiff's testimony taken alone, is such that reasonable men, acting reasonably could reasonably believe that testimony and prudently act on it.

3. NEW TRIAL.

Where trial judge is of opinion that verdict is against overwhelming weight, or clearly against great preponderance, of evidence, new trial should be allowed.

4. NEW TRIAL.

Trial judge may grant no more than two new trials on ground verdict is against overwhelming weight, or clearly against preponderance of evidence (Code 1930, section 592).

5. NEW TRIAL.

Statute providing that no more than two new trials shall be granted to same party held inapplicable to new trials for errors of law (Code 1930, section 592).

HON. T. H. JOHNSTON, Judge.

APPEAL from circuit court of Prentiss county, HON. T. H. JOHNSTON, Judge.

Action by Mrs. Annie R. Johnson against the Mobile & Ohio Railroad Company and others. Judgment in favor of the plaintiff, and the defendants appeal. Reversed, and cause remanded.

Reversed and remanded.

Carl Fox, of Memphis, Tenn., and Ely B. Mitchell, 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; Quenn Ann. R. R. Co. v. Reed, 5 Penn. 269, 119 Am. St. Rep. 301; Northern Central R. R. Co. v. State, 100 Md. 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. Huideroper, 7 Wall. 384, 21 L.Ed. 644; Philadelphia R. R. Co. v. Gatta, 4 Boyce, 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; Cotton v. Willmar & Sioux Falls Railway Company, 8 L.R.A. (N.S.) 648; Elias v. Collins, Receiver, et al., 52 A.L.R. 1120; Oliver v. The Union Pacific R. R. Company, 179 N.W. 1017.

A peremptory instruction is proper only where all of the facts and evidence taken as true with every just inference therefrom fail to maintain the issues.

Whitley v. Cook, 53 Miss. 551; Farmer v. Cum. Tel. & Tel. Co., 86 Miss. 55.

The court may properly give a peremptory instruction where no other verdict could reasonably have been allowed to stand.

Wooten v. M. & O. R. R. Co., 89 Miss. 322; Clark v. Joyce, 48 So. 721.

Erroneous instruction is not cured by instruction in conflict therewith.

Ellis v. Ellis, 160 Miss. 346.

Where a train striking an automobile at a crossing was exceeding fifty miles per hour, but sounded all necessary alarms, and motorist had an unobstructed view up track for at least eighteen hundred feet from the stop sign, railroad was not liable.

Hancock v. I. C. R. R. Co., 158 Miss. 668; M. & O. R. R. Co. v. Johnson, 157 Miss. 266.

The testimony of witnesses that they did not hear the ringing of the bell on the locomotive as it approached a crossing, without proof that the witnesses listened for the bell, or that their attention was in any way directed to it, or that they probably must have heard the bell if it did ring, cannot prevail against the positive testimony of other credible witnesses that the bell did ring at the time in question.

M. & O. R. R. Company v. Johnson, 157 Miss. 270-271.

All other things being equal, the testimony of a witness who testifies positively that a certain fact occurred is generally speaking entitled to more weight than the evidence of another witness who swears that the fact did not occur, for it is far more probable that the latter has forgotten the occurence than that it should be distinctly impressed on the mind of the former if it never took place. A fortiori the testimony of a witness that he does not remember a particular matter has little or no weight as against the direct testimony of a witness who does remember the matter.

23 C. J., section 1787, pages 42 and 43.

J. A. Cunningham, and Floyd Cunningham, both of Booneville, for appellee.

Whether the positive or the negative testimony shall prevail is frequently determined by considerations affecting the weight of testimony in general, such as the credibility of the witnesses, the accuracy of their memory their opportunities for observation, and the reasonableness of their testimony. Interest or other bias of a witness may impair the weight of his testimony, whether it is positive or negative, and conversely the absence of any interest or bias operates in favor of the witness.

23 C. J., section 1789.

Testimony that a fact did not occur, given by a witness so situated that in the ordinary course of events he would have heard or seen the fact had it occurred, is sufficient to warrant a jury finding that the fact did not occur.

Y. & M. V. R. R. Co. v. Beasley, 130 So. 499; 23 C. J. sections 1786, 1787.

It was the fireman's duty to look ahead to protect the public on approaching highways, unless he was engaged in some business with his engines. The jury had a right to believe that he was in a place where he could see, and that he did see and negligently failed to give an alarm signal, or that he negligently failed to look upon approaching this highway crossing.

Yazoo & Mississippi Valley Railroad Company v. Lee, 114 So. 866; Illinois Central Railroad Company v. Mann, 102 So. 853; A. & V. R. R. Co. v. Kelly, 88 So. 707; Edward Hinds Yellow Pine Trustees, v. Holly, 106 So. 822; M. & O. R. R. Co. v. Watley, 13 So. 825; N. & O. & M. C. Railroad Co. v. Harrison, 61 So. 655; I. C. Railroad Company v. Williams, 110 So. 511.

Argued orally by Ely B. Mitchell, for appellant, and by J. A. Cunningham, for appellee.

OPINION

Griffith, J.

This case is before us for the second time and on practically the same record. Mobile & O. R. Co. v. Johnson, 157 Miss. 266, 126 So. 827. The facts are set out rather fully in the opinion in the former appeal, and will not be repeated here, except to say that the present record shows that Mr. Johnson approached the railroad crossing, and without any slackening of speed, ran by the statutory stop sign on the edge of the right of way and upon the track of the railroad at the rate of fifteen miles per hour, or at the rate of twenty-two feet per second. The freight train of more than one thousand tons was traveling at the rate of forty miles per hour, or approximately fifty-eight feet per second. When, therefore, Mr. Johnson entered upon the right of way fifty feet from the track, the locomotive was only about one hundred forty-five feet from the crossing, and thus the collision occurred in two and one-third seconds after Mr. Johnson entered upon the right of way. In Mobile & O. R. Co. v. Bryant, 159 Miss. 528, 132 So. 539, we pointed out the utter improbability that within such a short space of time--less than one breath in the respiration of a normal person-- anything effectual could be done by the train crew to avoid the collision. This same consideration is adverted to by the court in Hancock v. Ill. Cent. R. Co., 158 Miss. 668, 675, 131 So. 83.

Thus we are brought back to the question whether the enginemen were...