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

• Decision Date: 08 January 1934
• Docket Number: 30898
• Parties: NEW ORLEANS & N. E. R. CO. v. HOLSOMBACK
• Court: Mississippi Supreme Court

151 So. 720

168 Miss. 493

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

No. 30898

Supreme Court of Mississippi

January 8, 1934

Division B

1. APPEAL AND ERROR.

Reviewing court must accept evidence of prevailing party, together with all permissible Inferences therefrom.

2 EVIDENCE.

Something more substantial than conjecture or possibility is necessary to form supporting foundation of verdict or judgment.

3 RAILROADS.

Railroads are not, as a general rule, required to reduce speed of their trains in approaching seldom-used crossings in remote locations.

4 RAILROADS.

Evidence in action for damages resulting from collision between passing train and automobile, stalled at little used crossing, held insufficient to establish railroad's negligence by reason of train's speed and failure to stop.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Action by Joe Holsomback against the New Orleans & North Eastern Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered for defendant.

Reversed, and judgment here for appellant.

Bozeman & Cameron, of Meridian, for appellant.

The proof showed the situation with respect to this crossing. The road was known as the "graveyard" road, and the proof showed that it was as dead as its name implied, as far as traffic was concerned. Our contention is that it cannot be left to the caprice of a jury to say that any particular speed at this type of crossing is an excessive, or unreasonable speed. In this case the jury was left to speculate on this, and their verdict is nothing in the world but speculation.

Billingsly v. Illinois Central, 100 Miss. 612, 56 So. 790.

It is familiar law that even though a person is negligent, if the other has the last clear chance to avoid the consequences of the negligence, no liability or defense can be predicated on the original negligence, if the person so having the last clear chance fails to avail himself of it.

Fuller v. Illinois Central, 100 Miss. 705, 56 So. 783; Billingsly v. Illinois Central, 100 Miss. 612, 56 So. 790; Peitri v. L. & N. R. R. Co., 152 Miss. 185, 119 So. 164; Y. & M. V. R. R. Co. v. Green, 147 So. 333.

The plaintiff had the undoubted chance to stop this train by flagging it, and he failed to do it, and his failure is the sole proximate cause of the accident.

Dunn & Westbrook, of Meridian, for appellee.

Certainly it was not a question of law for for the court to determine whether or not, in view of the proof, the railroad company was operating the train at an excessive rate of speed or failing to maintain a proper lookout or both, and whether or not such action was negligent and was one of the proximate or contributing causes of the accident. All of these matters were properly within the province of the jury and were submitted under their consideration under the proper instruction of the court.

Hines v. Moore, 124 Miss. 500, 87 So. 1.

If the jury believed that the servants of the railroad company were negligent either in running the train at an excessive rate of speed or in failing to maintain a proper lookout, or both, the further question was for them to decide whether or not this negligence was the proximate or one of the contributing causes of the accident.

Railroad Co. v. Williams, 114 Miss. 236, 74 So. 835; Railroad Co. v. McGee, 117 Miss. 370, 78 So. 296; Railroad Co. v. Dillon, 111 Miss. 520, 71 So. 809; Power Co. v. McEachern, 109 Miss. 380, 69 So. 185; Illinois Central Railroad Company v. Williams, 144 Miss. 804, 110 So. 510; Brinkley v. Southern Railway Co., 74 So. 280.

OPINION

Griffith, J.

Appellee, driving at night, attempted to cross the railroad at a public crossing and, immediately as he came upon track, the right front wheel of his automobile came off, thus leaving the car stalled on the tracks; and before the heavy machine could be removed it was struck by a southbound fast freight train.

Two issues of alleged negligence are presented for consideration:

First it is alleged that the crossing was in such bad...