Owen v. Anderson

• Decision Date: 20 January 1919
• Docket Number: 20492
• Citation: 80 So. 386,119 Miss. 66
• Parties: OWEN, RECEIVER OF N. O., M. & CHICAGO R. CO. v. ANDERSON
• Court: Mississippi Supreme Court

80 So. 386

119 Miss. 66

OWEN, RECEIVER OF N. O., M. & CHICAGO R. CO. v. ANDERSON

No. 20492

Supreme Court of Mississippi

January 20, 1919

Division B

1 TRIAL. Instructions.

In a suit against a railroad company for personal injury sustained by plaintiff while climbing between the box cars of a train blocking a street crossing, an instruction that if the street crossing was closed and the train at rest, plaintiff had the right to climb between the cars and that if he did so and was injured, he was entitled to recover, was erroneous in that it took no account of the length of time that the crossing had been closed and overlooked the question of negligence altogether.

2 RAILROADS. Obstructing crossing. Action for injuries.

In a suit for personal injuries, sustained by plaintiff while climbing over between the box cars of a train obstructing a village street crossing an averment in the declaration, that the crossing had been blocked longer than five minutes, was a material fact, necessary to be proven.

3 RAILROADS. Obstructing crossing. Negligence. Evidence.

Under the facts in this case set out in its opinion, the court held that a peremptory instruction for the defendant should have been given.

4. RAILROADS. Obstructing crossings. Village ordinance. Burden of Proof.

In view of the Code of 1906, section 4049 (Hemingway's Code, section 6673), the plaintiff has the burden of showing that the village had an ordinance prescribing the stoppage of trains at street crossings, where he sues for injuries sustained while climbing between the cars of a train obstructing such crossing.

5. EVIDENCE. Judicial notice. Incorporation of village.

The supreme court will take judicial notice that a village is incorporated as such.

HON. J. D. CARR, Judge.

APPEAL from the circuit court of Neshoba county, HON. J. D. CARR, Judge.

Suit by Tee Anderson against W. H. Owen, Receiver of the N. O., Mobile & Chicago R. R. Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed.

J. N. Flowers, J. T. Brown and J. C. Rich, for appellant.

OPINION

STEVENS, J.

The appellee sued to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant railroad company in blocking the highway in the village of Stallo, Miss. The record discloses that there is a passing track at Stallo; that on the occasion complained of a freight train pulled in on the side track to await the arrival and passage of a passenger train; that, while the freight train thus stood upon the side track, it extended across the village road which crossed the railroad track some fifty or seventy-five yards south of the depot. It is further shown without dispute that the employees operating the freight train when they first pulled in on the side track opened or cut the crossing and kept the highway opened until about the time the passenger train blew for the station of Stallo. At or about the time the passenger train arrived, the freight train crew then coupled up the cars, and for a short period of time had the crossing closed. After they had closed the crossing, the plaintiff arrived at the crossing in haste, and, finding the freight train across the street, he proceeded to climb over between the box cars. Just as he placed his foot on the coupling, the engineer of the freight train began moving the train, and the plaintiff's foot was caught and to some extent mashed and injured. The declaration charges that the defendant company wrongfully blocked the crossing and kept the highway closed for a period of time exceeding five minutes. Issue being joined, the cause was carried to the court and jury, and certain instructions given the plaintiff are now assigned as error.

Instruction No. 4, complained of, reads as follows:

"The court instructs the jury for the plaintiff that if they believe from the evidence the plaintiff, Tee Anderson, on reaching the railroad crossing at Stallo, found the said crossing was closed and the train at rest, and plaintiff attempted to cross the said train, and that no legal warning was given him by defendant, and no danger apparent, and that while so crossing he received the injury complained of, then in that event he is entitled to recover from the defendant in any sum not to exceed the amount sued for that you may believe from the evidence he is entitled, and you should so find."

Instruction No. 2, next assigned as error, reads:

"The court charges the jury for the plaintiff that under the law it was the duty of the engineer running or operating a locomotive or car in approaching a station to ring a bell, and that the same is also true of the departure of a train, and the failure to do so amounts to negligence on the part of the railroad in charge of the train, and if you believe that defendant was negligent in this regard, and that as a result of same plaintiff received his injuries, then it is your duty to find for the plaintiff in such sum as you feel warranted under the testimony, not to exceed the sum sued for."

Other questions are raised, among which is the contention that the prima-facie statute has no application, the facts...