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

• Decision Date: 14 October 1929
• Docket Number: 28002
• Citation: 124 So. 66,155 Miss. 104
• Parties: NEW ORLEANS & N.E. R. CO. v. HEGWOOD
• Court: Mississippi Supreme Court

124 So. 66

155 Miss. 104

NEW ORLEANS & N.E. R. CO. v. HEGWOOD

No. 28002

Supreme Court of Mississippi

October 14, 1929

Division B

Suggestion of Error Overruled November 25, 1929.

APPEAL from circuit court of Forrest county, HON. R S. HALL, Judge.

Action by Mrs. H. L. Hegwood against the New Orleans & Northeastern Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Stevens & Heidelberg, of Hattiesburg, for appellants.

The statute does not require the whistle to be blown continuously for three hundred yards.

In construing statutes, the chief aim of the courts should be to reach the real intention of the legislature. A construction which will bring about manifestly unthought of and unjust results will be avoided, if possible, and, if necessary to avoid such results, the courts will widen or narrow the letter of the statute.

Canal Bank & Trust Co. v. Brewer, 147 Miss. 885; Queen v. Clarence, L. R. 22, Q. B. Division 65; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; Dunn v. Clingham, 93 Miss. 310, 47 So. 503; Huber v. Freret, 138 Miss. 238; Gunter v. City of Jackson, 130 Miss. 637; Dixon v. Doe, 1 S. & M. 70; Pointer v. Trotter, 10 Ib. 537; Board v. Railroad Co., 72 Miss. 239; Adams v. Railroad Co., 75 Miss. 275.

Refusal to permit appellant to show payment of doctor bills and hospital expenses was error.

Sec. 516, Hemingway's Code of 1927.

It was the duty of decedent to see that the way was clear before going upon the track.

Baltimore & Ohio R. R. Co. v. Goodman, 72 L.Ed. 167.

Morris & Wingo, of Hattiesburg, and Reily & Parker, of Meridian, for appellee.

Where there is a conflict in the evidence on the proposition that appellant was violating section 4045 of the Code of 1906 and section 6669 of Hemingway's Code, at the time of the collision and that the collision might not have taken place except for the violation of the said statute by appellant, the question should be left to the jury.

G. & S. I. R. R. Co. v. Carlson, 102 So. 168; Columbus & Greenville R. R. Co. v. Lee, 115 So. 782; Davis v. Elzey, 88 So. 630.

There was a violation of section 4045 of the Code of 1906, Laws of 1920, Chapter 320, when a railroad train approaching a public crossing did not continuously ring its bell or blow its whistle for three hundred yards before reaching same.

Davis v. Elzey, 88 So. 630.

Before the supreme court will pass upon the correctness of the ruling of the court below on excluded testimony there must be some showing either from witnesses or statements to the court below as to what is proposed to be proven.

Mississippi Central R. R. Co. v. Robinson, 64 Miss. 838.

As to the duty of decedent to see that the way was clear.

Hemingway's Code, section 503.

OPINION

Ethridge, P. J.

The plaintiff, Mrs. H. L. Hegwood, filed a declaration for use and benefit of herself and three minor children, being the heirs at law of H. L. Hegwood, in which it was charged that on or about the 15th day of September, 1927, H. L. Hegwood, while crossing the railroad track of the appellant at Petal, Forrest county, Miss., and while traveling in an automobile, was struck and injured by a train of the defendant, in charge of and being operated by one James M. Smith, an engineer, who was likewise joined as a defendant. It was alleged that H. L. Hegwood died on the 1st day of October, 1927. The negligence charged in the declaration against the defendants was in operating the train over the crossing in question at an excessive and dangerous rate of speed, and in failing to blow the whistle or ring the bell for the distance and in the manner required by law.

To this declaration the defendants filed a plea of the general issue, and notice thereunder setting forth the contributory negligence of H. L. Hegwood in going upon the crossing in question driving an automobile at a high and dangerous and reckless rate of speed without stopping, looking, listening, or otherwise ascertaining whether the way was clear, and that he ran the said automobile into the side of the engine.

The declaration was filed on March 20, 1928, and the case was first tried at the July, 1928, term of the circuit court, the jury disagreeing as to the liability of the appellant, and mistrial, therefore, being entered. The case was again tried at the November, 1928, term, and a directed verdict in favor of the defendant J. M. Smith, and the jury returned against the appellant verdict for two thousand five hundred dollars, and on this verdict judgment was rendered for said amount and court costs.

On the present trial it appeared that the deceased was a deputy sheriff of the county and was called early in the morning to assist another deputy sheriff in making an arrest, and was proceeding on his way to the assistance of such other deputy, driving at a high rate of speed, and ran into the locomotive; the locomotive being first to reach the crossing. Located just south of the road crossing and east of the railroad track is a small shed or depot. Leading off from the railroad track a short distance south of the depot is a side track, this side track being also on the east side of the railroad. The railroad track south of the place of injury is straight, the right of way being approximately two hundred feet wide, one hundred feet on either side of the track.

It was in the testimony for the plaintiff that the whistle was not blown and the bell not rung until after passing the nine hundred foot sign board, or whistling board, of the defendant. There is a ginhouse located near the railroad track about five hundred twelve feet from the place of injury, and the testimony for the plaintiff tended to show that the whistle was not blown until this point was reached, and that the bell was not rung at all.

The testimony for the appellant was that the engineer blew the whistle at the whistling board and set the bell ringing, and the bell rang continuously until after the accident. The engineer also testified that he continued to blow the whistle at intervals of about three seconds while approaching the crossing. There was considerable testimony as to the situation of the buildings and other things near the railroad track, and the jury viewed the scene, or place, during the trial, and the objects were pointed out to the jury by witnesses at such time and place.

The court instructed the jury peremptorily in favor of the defendant Smith, and also instructed the jury that the railroad company was not guilty of negligence because of the cars on the side track, and also that the defendant was not negligent on account of the speed of the train, and further instructed the jury for the defendant that there was no prima-facie evidence of negligence against the defendant in this case, and limited the negligence to the question of whether or not the sign statute was complied with as to the blowing of the whistle and the ringing of the bell. The court further instructed the jury that it was not necessary to blow the whistle and ring the bell for a distance of three hundred yards from the crossing, but if either the bell was ringing continuously or the whistle blowing continuously for a distance of nine hundred feet before reaching the crossing they would find for the defendant. The court further instructed the jury that the deceased, H. L. Hegwood, was guilty of gross, contributory negligence, and that the amount of recovery should be diminished by the amount that the contributory negligence of the deceased bore to the negligence of the defendant, if the defendant was guilty of negligence in failing to blow the whistle or to ring the bell in accordance with statute. It further instructed the jury that it was the duty of the deceased, before going on the crossing, to bring his car to a stop in accordance with the statute, and to look and listen for the approach of a train, and it was unlawful for the automobile to drive upon the highway at a greater speed than thirty miles an hour, and in thickly settled communities it was unlawful to operate at a greater rate of speed than fifteen miles per hour.

It is insisted that there should have been a peremptory instruction for the defendant, the railroad company, because the evidence showed that the accident was due solely to the deceased driving at a high rate of speed in approaching the crossing without stopping to look and listen, and without stopping the car. The Mississippi Stop Law, section 7965, Hemingway's Code 1927, requires every person operating or controlling any railroad to erect a sign at every railroad crossing not less than ten feet from the ground to the top of the sign on the right side of the road, forty inches by fifty inches, fifty feet from said crossing, on which shall be painted, in red letters to insure warning of the proximity of the crossing the sign: "MISSISSIPPI LAW. STOP." Section 7966 requires the drivers of motor vehicles to stop before crossing a railroad track, not less than ten feet nor more than fifty feet from the nearest track, and look for a train. The statute makes exceptions in favor of certain vehicles not pertinent to this case. It is further provided: "And in the trial of all actions to...