New Orleans & N. E. R. Co. v. Wheat

• Decision Date: 25 March 1935
• Docket Number: 31627
• Parties: NEW ORLEANS & N. E. R. CO. et al. v. WHEAT
• Court: Mississippi Supreme Court

160 So. 607

172 Miss. 524

NEW ORLEANS & N. E. R. CO. et al. v. WHEAT

No. 31627

Supreme Court of Mississippi

March 25, 1935

Division B

1. TRIAL

In action for injuries received in railroad crossing accident outside six-mile speed limit, instruction that railroad bad duty to keep train under control and at such speed as not to recklessly injure persons lawfully undertaking to cross, and requiring verdict for plaintiff if train was negligently operated at high speed so as to proximately cause or contribute to accident, Held error and not cured by subsequent contradictory instruction that verdict could not he found against railroad on account of train's speed.

2 RAILROADS.

Railroads are not required to reduce speed at crossings outside six-mile limit, except at frequently used, or crowded crossings.

HON HARVEY McGEHEE, Judge.

APPEAL from circuit court of Pearl River county HON. HARVEY MCGEHEE, Judge.

Action by B. W. Wheat against the New Orleans & North Eastern Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Reversed and remanded.

Parker & Shivers, of Poplarville, and Heidelberg & Roberts, of Hattiesburg, for appellants.

The court erred in refusing to grant appellants a peremptory instruction. The mere fact that there may be testimony tending to establish the plaintiff's theory of the case is not sufficient, but on the other hand it must be reasonable testimony. It must be testimony that is not inconsistent with admitted physical facts and is not inconsistent with natural laws or common knowledge.

Mobile & Ohio R. Co. v. Johnson, 141 So. 581.

It was error on the part of the lower court to overrule appellant's motion for a new trial.

The verdict of the jury was against the overwhelming weight of the testimony.

Mobile & Ohio R. R. Co. v. Johnson, 141 So. 581.

Instructions must be construed together as a whole and where instructions so construed can be reconciled the court will not reverse because thereof, but on the other hand it is the universal holding of this court that it is error to grant conflicting instructions and cases have been frequently reversed by this court because of conflicting instructions having been granted.

Ellis v. Ellis, 134 So. 150, 160 Miss. 345; Hines v. Lockhart, 105 So. 449; R. R. Co. v. Lilly, 8 So. 644; R. R. Co. v. McGowan, 46 So. 55, 92 Miss. 603.

Gex & Gex, of Bay St. Louis, and J. M. Morse, of Poplarville, for appellee.

The jury, by its verdict, accepted the appellees' testimony.

The appellants, instead of attempting to obtain a, reversal of this cause, should in our opinion, congratulate themselves on the small amount of the verdict, two juries having reached the same conclusion on two different trials of this cause.

Appellee's evidence is reasonable and in no way inconsistent with any physical facts.

The instructions granted appellee were proper.

So. R. R. Co. v. Murray, 91 Miss. 546.

The instruction obtained on behalf of the appellee was entirely correct; it was not predicated on the statutory rate of speed within municipalities, but upon the general law of negligence in the operation of trains at much frequented public highway crossings, and that it announced the correct law is sustained by the following cases:

St. Louis & S. F. R. Co. v. Moore, 58 So. 471; Stevens v. R. R. Co., 81 Miss. 195, 32 So. 311; Nixon v. I. C. R. R., 103 Miss. 405, 60 So. 566.

OPINION

Griffith, J.

Appellee the plaintiff, alleged that he was injured in a collision between a fast passenger train of appellant railroad and a motor truck driven by appellee, and at a public crossing within the municipal limits of the town of Poplarville. The crossing is located about three-quarters of a mile north of the railroad station in Poplarville and far outside of the six-mile speed limit as prescribed by the existing order of the State Railroad Commission. The said crossing is not shown on the official map of the town, but the proof is that it had been worked and used by the public for a sufficient length of time to make it a public highway. The proof, however, is entirely silent upon the question whether it was much used, or frequently used, or crowded. Mobile & O. R. Co. v. Bryant, 159 Miss. 528, 536, 132 So. 539. The speed of the train was about forty-five...