Murray v. Louisville & Nashville R. Co

• Decision Date: 15 January 1934
• Docket Number: 30986
• Citation: 151 So. 913,168 Miss. 513
• Parties: MURRAY et al. v. LOUISVILLE & NASHVILLE R. CO
• Court: Mississippi Supreme Court

151 So. 913

168 Miss. 513

MURRAY et al. v. LOUISVILLE & NASHVILLE R. CO

No. 30986

Supreme Court of Mississippi

January 15, 1934

Division A

Suggestion Of Error Overruled January 29, 1934.

APPEAL from circuit court of Harrison county HON. W. A. WHITE Judge.

Action by Alphonse Murray and others against the Louisville &amp Nashville Railroad Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Affirmed.

Bidwell Adam, of Gulfport, for appellants.

It is well settled in this state that it is error to give peremptory instruction on a point on which the testimony is conflicting.

Bell v. Southern R. Co., 94 Miss. 440, 49 So. 120; Skipworth v. Mobile & O. R. Co., 95 Miss. 50, 48 So. 964; Byers v. McDonald, 99, Miss. 42, 54 So. 664; Romando v. Vicksburg & R. Co., 39 So. 781; Bonner v. New Orleans R. Co., 40 So. 65; Elledge v. Gray, 41 So. 2; Bryant v. Enochs Lbr. Co., 94 Miss. 454, 49 So. 113; Bolling v. Red Snapper Sauce Co., 97 Miss. 787, 53 So. 394; Dodge v. Cutler, 101 Miss. 844, 58 So. 208; Hardy v. Masonic B. Assn., 103 Miss. 108, 60 So. 48; Walker v. Dantzler Lbr. Co., 103 Miss. 826, 60 So. 1013; Mobile & O. Ry. Co. v. Carpenter, 104 Miss. 706, 61 So. 693; Offutt v. Barrett, 106 Miss. 31, 63 So. 333; Waldrop v. Crittenden Co., 107 Miss. 595, 65 So. 644; National Life & Ins. Co. v. DeVance, 110, Miss. 196, 70 So. 83; Jones v. Knotts, 110 Miss. 590, 70 So. 701; Mobile & Ohio R. R. v. Johnson, 141 So. 581, 582; Young v. Columbus & G. Ry., 147 So. 432.

Everything must be considered as proved which the evidence establishes either directly or by reasonable inference against party who asks peremptory instructions.

Dean v. Brannon, 139 Miss. 312, 104 So. 183; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; Wise v. Peugh, 140 Miss. 165, 106 So. 81; New Orleans & R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; New Orleans & R. Co. v. Martin, 140 Miss. 410, 105 So. 864; St. Louis & R. Co. v. Nixon & Phillips, 141 Miss. 677, 105 So. 478; Yates v. Houston & Murray, 141 Miss. 881, 106 So. 110; Gulf & R. Co. v. Hales, 140 Miss. 829, 105 So. 458; Williams v. Gardner, 128 So. 111, 157 Miss. 252; Gulfport & Miss. Coast Traction Co. v. Raymond, 128 So. 327, 158 Miss. 439; Sanders v. Leake & Goodlett, 130 So. 489, 158 Miss. 424; Yazoo & M. V. R. Co. v. Beasley, 130 So. 499, 158 Miss. 370; Wellford & Withers v. Arnold, 140 So. 220, 162 Miss. 786.

The testimony of the engineer Lavine is sufficient under Section 6125, Code of 1930, to have permitted this case to have gone to the jury on the question of negligence, because engineer Lavine who was in charge and operating train 2nd No. 73 on the morning of April the 22nd, testified that he could have missed blowing for the Hiern Avenue, Church Street or Clark Street crossing.

Nixon v. I. C. R. R. Co., 60 So. 567; Section 1580, Mississippi Code of 1930; Mobile, J. & K. C. R. R. Co. v. Turnipseed, 46 So. 360, 219 U.S. 35, 31 S.Ct. 136, 138, 55 L.Ed. 78, 32 L. R. A. (N. S.) 226.

It is our contention that in view of Section 1580 of the Code of 1930 and of the Turnipseed case, supra, that there was more than sufficient evidence in this case for the same to be submitted to the jury on the theory and question of negligence as set forth in the celebrated Turnipseed case handed down by the U. S. Supreme Court affirming the decision of this court.

Columbus & G. Ry. v. Dunlap, 145 So. 646.

Smith & Johnston, of Mobile, Ala., for appellee.

It is elemental that in order to make a case of liability for a tort it must be shown that the defendant, or its servants or agents, were guilty of negligence, and that the negligence constituted the proximate cause. Negligence that is not shown to be the proximate cause does not constitute a liability on the part of the defendant.

Louisville & Nashville Railroad Co. v. Daniels, 135 Miss. 33, 99 So. 434; Louisville & Nashville Railroad Co. v. Jones, 134 Miss. 53, 98 So. 230; Howell v. Illinois Central Railroad Co., 75. Miss. 242, 21 So. 746; Ozen v. Sperier, 117 So. 117; Garrett v. Louisville & Nashville Railroad Co., 196 Ala. 52, 71 So. 685; Columbus & Georgia Ry. Co. v. Cobbs, 126 So. 402; Bufkin v. Louisville & Nashville Railroad Co., 137 So. 517; Billingsly v. Illinois Central Railroad Co., 56 So. 790, 100 Miss. 612; G. M. & N. R. R. v. Hardy, 117 So. 536, 151 Miss. 131; Y. & M. V. R. Co. v. Cox, 97 So. 7, 132 Miss. 564.

A railroad company does not owe any duty to keep a lookout for persons who are trespassers, but the only duty owing to a trespasser is not to wantonly or wilfully injure him after discovering his position of peril.

N. O. M. & C. R. Co. v. Harrison, 61 So. 655, 105 Miss. 18; I. C. R. R. Co. v. Mann, 102 So. 853, 137 Miss. 819; A. G. S. Ry. v. Daniell, 108 Miss. 358, 66 So. 730; Fuller v. I. C. R. R. Co., 100 Miss. 705, 56 So. 783; I. C. R. R. Co. v. Ash, 128 Miss. 410, 91 So. 31; L. N. O. & T. R. Co. v. Williams, 12 So. 957, 69 Miss. 631; Hancock v. Illinois Central R. R. Co., 131. So. 83; Mobile & Ohio Railroad Co. v. Bryant, 132 So. 539.

If the deceased was killed on a crossing there was no liability.

Columbus & G. Ry. Co. v. Dunlap, 145 So. 646.

If he was trying to hop off or on the train and was killed in the act, whether at a crossing or any other place, the defendant could not be held responsible for his unfortunate death.

When the defendant showed positively that he was not struck by the front of the engine on any of the crossings, or was not on the crossings when the engine passed over, there was no possible basis upon which the jury could find the defendant liable for this unfortunate accident. To permit a jury to do so would be in violation of the Federal Constitution, in that it would deprive the defendant of its property without due process of law.

Western & A. R. R. v. Henderson, 279 U.S. 639, 49 S.Ct. 445; Atlantic Coast Line Ry. Co. v. Ford, 53 S.Ct. 249; N. O. & G. N. R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Adams-Newell. Lbr. Co. v. Jones, 162 Miss. 517, 139 So. 315; A. G. S. Ry. v. Hunnicutt, 53 So. 617, 98 Miss. 272; G. M. & N. R. R. v. Jones, 102 So. 385, 137 Miss. 631; C. & G. Ry. Co. v. Cobbs, 126 So. 402; Ozen v. Sperier, 117 So. 117, 150 Miss. 458.

Argued orally by Bidwell Adam, for appellant, and by Harry H. Smith, for appellee.

OPINION

Cook, J.

This is a suit by the father, mother, sisters, and brothers of Octave Murray, deceased, to recover damages from the appellee for the death of Murray, who is alleged to have been struck and killed by one of the appellee's trains. At the close of the evidence the court peremptorily instructed the jury to find for the railroad company, and from the verdict and judgment entered in pursuance thereof this appeal was prosecuted.

The body of the deceased was found strewn along the railroad track between Hiern avenue and Church street in the city of Pass Christian. Leovy avenue, which is between Hiern avenue and Church street, abuts on the railroad right of way but does not cross the railroad tracks, and the main part of the mangled body was found near the point where Leovy avenue would have crossed the railroad tracks if extended; nearby his cap and shoes were found, showing no signs of damage by the...