Pascagoula St. Ry. & Power Co. v. McEachern

• Decision Date: 12 July 1915
• Docket Number: 16844
• Citation: 109 Miss. 380,69 So. 185
• Parties: PASCAGOULA ST. RY. & POWER CO. v. MCEACHERN
• Court: Mississippi Supreme Court

69 So. 185

109 Miss. 380

PASCAGOULA ST. RY. & POWER CO. v. MCEACHERN

No. 16844

Supreme Court of Mississippi

July 12, 1915

APPEAL from the circuit court of Jackson county. HON. T. H. BARRETT Judge.

Suit by Dr. C. G. McEachern against the Pascagoula Street Railway &amp Power Company. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

Ford &amp White, for appellant.

In our original brief in this case, we took the position that the action of the court in overruling the demurrer, filed by the appellant to the declaration of the appellee and thereafter instructing the jury that the appellee while driving an automobile along a public highway would be excused from negligence in driving his machine at a rapid rate of speed provided the jury believed that he, the appellee, temporarily forgot about the existence of the crossing, was wrong. Since the preparation of that brief, we have found one case bearing directly on this proposition, which establishes exactly what we contend. It is the case of McDonald v. Yoder, 80 Kan. 25, 101 P. 468.

In that case the court held that a chauffeur in driving his machine on a public highway must keep a rigid watch ahead for vehicles and pedestrians, and at the first appearance of danger take proper steps to avert it and if necessary to stop the machine and even the motor if this is necessary and practical. He will be presumed in the case of accident to have seen what he should and could have seen in the performance of this duty.

This is bound to be the law with reference to the driving of a dangerous machine like an automobile, in a public place. To hold as the circuit court held in this case that the driver of an automobile would be permitted to temporarily forget the railroad crossing of the street by the street railroad and run at such a high speed that he was compelled to go in the ditch to avoid colliding with a car, is simply a license to people occupying that position to make a reckless use of the streets. In this case if appellant had simply looked ahead while driving several hundred feet down the street no possibility of an accident would have occurred.

The case of Savoy v. McLeod, 48 L. R. A. (N. S.) 971, decided by the supreme court of Maine in the month of November 1913, and since this case was tried in the circuit court, was a case in which the court was called upon to define the duties of the driver of an automobile upon a public highway and the language of that court on this important subject applies with such force to the case at bar that we quote it.

It would be of little avail to analyze the testimony in this case on the question of liability. The report shows that there was ample room for the defendant to have guided his machine safely past the team in which the plaintiff was riding had he been paying proper attention to the rights of the team. In view of the accidents and tragedies that are daily occurring in the operation of automobiles, the present case seems an available opportunity for a statement of the familiar rules of law with more definite application than has yet been announced in this state, to the duty of persons who undertake to drive upon the public highways the engines of power and peril now represented in the mechanism of the automobile. If not strictly a matter of judicial notice, it is a matter of common knowledge, that death and injury are of daily occurrence due to the inefficiency, negligence, or reckless conduct of those who are permitted to engage in the operation of these powerful machines. A mania for speed seems to have seized the minds and dominated the action of many of the automobile operators, whether owners or chauffeurs. This class of drivers apparently assume that the foot passenger or team will, upon their approach, so hastily change its course as to relieve the operator from any diminution of speed, that he may have his machine under control and avoid an accident if the unexpected happens and the passenger or vehicle or child does not, as quickly as anticipated, obey the mandate of his whistle or horn. It is also a matter of common knowledge that all adults of ordinary prudence do not always immediately do the right thing or exercise the best judgment in cases requiring quick thought and quick action. 48 L. R. A. (N. S.). This failure of men to act alike, under like circumstances, is so general in its application that it must be regarded as a habit which all persons, coming in contact with human action, must be held to anticipate as an existing condition. In view of this habit, due to the inherent frailties of human nature, and the rule of law that the degree of diligence deemed in law sufficient to constitute due care is always commensurate with the danger to be avoided, it is the opinion of the court that the driver of an automobile in the public highways constantly traveled by pedestrians and teams and occupied by children of all ages should, to establish due care, exercise so high a degree of diligence in observing the rights of a foot passenger or team when approaching them as to enable him to control it, to stop it if necessary to avoid a collision which cannot be regarded as a pure accident or due to contributory negligence.

But it may be claimed that this rule of diligence renders the operation of automobiles impracticable. If so, let the business stop. They should be required to do everything that human agency can do to avoid taking human life. This court declared in Cameron v. Lewiston, B. & B. Street R. Co., 103 Me. 482, 18 L. R. A. (N. S.) 497, 125 Am. St. Rep. 315, 70 A. 534, that "the court should establish as the law the rule which prevents injury or loss of life, rather than that which invites or even permits it." This rule is based upon reason and good public policy. But the claim of impracticability is not well founded. Prudent drivers neither kill children nor injure men, except at very rare intervals, and then only in cases of unavoidable accident or contributory negligence. But, whatever the result, these requirements are essential to an effective rule of safety, and are in harmony with the rights of travelers upon the highway and of children in the streets, however they may come there.

But no new principles of law have been evolved for express applications to the operation of automobiles. We have simply endeavored to apply the well-known principles of law in a specific way to this class of cases, as has been done in the cases of steam roads and electric cars. The foundation of every principle of law invoked is found in what might be regarded as a legal maxim (the very foundation of the rule underling the doctrine of due care and negligence), that in all human action involving hazard the law imposes the duty of using diligence as is commensurate with the danger to be avoided. This rule applies to the operation of steam railroads, upon the ground of public policy and safety, and finds expression in Libby v. Maine C. R. C. Co., 85 Me. 34, 20 L. R. A. 821, 26 A. 934, in this language: "The law requires common carriers of passengers to do all that human care, vigilance, and foresight can under the circumstances, considering the character and mode of conveyance, to prevent accident to passengers. To require anything less would be to leave the lives of persons in the hands of the reckless, and unprotected against the negligent and incautious."

In the case above cited, where there was a collision between an automobile and a team in a road, the driver of the automobile insisted that he gave notice of his approach by blowing a horn and the fact that the driver of the team did not see fit to get out of his way was a sufficient excuse for him, the driver of the automobile, running into the team. It was a case exactly like the case at bar in that the driver of the machine was driving at such rate of speed that he could not control its motion when it became necessary to avoid trouble at the critical moment, that is, when it became apparent that he was to strike the vehicle in front of him. Had the machine been under control no such accident could have happened, and that court held that a driver of an automobile under such circumstances would be responsible for the results of such accident. In the case at bar no possibility of an accident could have arisen had the appellee been running his machine either at a reasonable rate of speed, or had he been looking ahead of him at the time. But his attention being called away in conversing with the gentleman who was in the machine with him and temporarily forgot the existence of the street car which crosses the track, made him run a distance of one hundred or one hundred and fifty feet after the car had entered upon the street, and in order to avoid a collision he had to run into a ditch. His contention that he had a right to forget the existence of the street car and that the street car company was charged with the duty of seeing that he had lost control of his machine, or had forgotten his surroundings, was submitted to the jury by the lower court on that theory, and the jury in this case as it will do in every case in which a question of fact however unsubstantial it may be in which there is a controversy between a person and a street car company, found the fact against the street car company. There was absolutely no conflict in the testimony that when the street car reached the street upon which the appellee was driving his automobile that the machine was from seventy-five to one hundred feet away, and thereupon the street car proceeds to cross the track under the assumption that the appellee had control of his machine and would not attempt to run over the street car. The court knows that it would be an impossibility...