Pietri v. Louisville & N. R. Co.

• Decision Date: 19 November 1928
• Docket Number: 27364
• Citation: 152 Miss. 185,119 So. 164
• Parties: PIETRI v. LOUISVILLE & N. R. CO. [*]
• Court: Mississippi Supreme Court

119 So. 164

152 Miss. 185

PIETRI v. LOUISVILLE & N. R. CO. ^[*]

No. 27364

Supreme Court of Mississippi

November 19, 1928

Division B

Suggestion of Error Overruled Dec. 17, 1928.

APPEAL from circuit court of Hancock county, HON. W. A. WHITE Judge.

Suit by Mrs. Mildred Pietri against the Louisville & Nashville Railroad Company.From the judgment, plaintiff appeals.Affirmed.

Judgment affirmed.

Gex & Russell, for appellant.

There is but one issue for the consideration of the court, and that is, when one by his negligence causes an injury, is he responsible for all of the results proximately flowing from that injury?

Since that question has been so well settled time and again, in the jurisprudence of every state, we shall undertake only to cite a few authorities of a general nature, and then cite the authorities specifically sustaining the right to recover for an injury practically identical with the one caused to the plaintiff herein.17 C. J. 728.As to whether damages are recoverable for physical injuries resulting from fright caused by the negligence of another, see17 C. J. 838;Hendrix v. Texas Ry. Co. (Texas),89 S.W. 461;St. Louis S.W. Ry. Co. v. Murdock (Texas),116 S.W. 139;Arthur v. Henry(N. C.),73 S.E. 211;Simone v. Rhode Island Co.(R. I.),66 A. 202;B. & O. Railroad Co. v. Harris(Md.),88 A. 282;Gulf C. & S. F. Ry. Co. v. Hayter (Texas),55 S.W. 128;Greene v. Shoemaker & Co.(Md.),73 A. 688;Kimberly v. Howland(N. C.),55 S.E. 778;Sternhagen v. Kozel(S. D.),167 N.W. 398;Pankoff v. Hinkley(Wis.),123 N.W. 625;Spearman v. McCrary(Ala.),58 So. 927;Alabama Fuel & Iron Co. v. Baladoni(Ala.),73 So. 205;Purcell v. St. Paul City Ry. Co.(Minn.),50 N.W. 1034;Watson v. Dilts (Iowa), 89 N.W. 1068.

The law is too well settled to need citation of authority on the proposition that when one has been put in peril by the negligence of another, it is a question for the jury always as to whether that person acted as a reasonable and prudent person would have acted.

Smith, Young & Johnston, for appellee.

The principle that there is no liability for injuries which one sustains when they voluntarily place themselves in a position to be injured, knowing the circumstances, is so well settled that it needs no citation of authority.The supreme court of Mississippi has ruled several times that in order to recover from any injury it must be shown that there was negligence on the part of the defendant which proximately caused the injury.Billingsley v. I. C. R. R. Co.,100 Miss. 612, 56 So. 790;L. & N. R. R. Co. v. Jones,134 Miss. 53, 98 So. 230;Connalley et al. v. L. & N. R. R. Co., 4 F. (2) 539;L. & N. R. R. Co. v. Daniels,135 Miss. 53, 99 So. 434;Ozen v. Sperier, 150 Miss. 458, 117 So. 117.

It is clear that if Mrs. Pietri did sustain any physical injuries by reason of fright it was due to her own voluntary act in remaining in a position where she would become frightened, because she had ample time to go as far away from the scene of the accident as she wanted to.

Gex & Russell, in reply for appellant.

It cannot be argued that appellant would have been any less frightened under the circumstances, had she been one hundred or four hundred more feet further removed from the place of the collision than she was after she had seen the train strike and destroy her property as it did.To say the least, the question as to what was the proximate cause of this injury was for the jury to have decided under the proper instructions of the court and not for the court to have decided, and certainly not after the court had overruled a demurrer to this count in the declaration.

Counsel state that the principle that there is no liability for injuries which one sustains when they voluntarily place themselves in a position to be injured is well settled and they cite authorities from the supreme court of Mississippi sustaining their position.But these authorities have no application to the case at bar for the reason that the testimony in this record clearly shows that the appellant did not voluntarily place herself in a position of peril, but that she was crossing the track of the appellant as she had a right to do, when, because of the improper crossing of the appellee, her car was caused to go dead, and we therefore pass up these authorities without further comment.

Argued orally by Bryan Russell, for appellant.

OPINION

PACK, J.

This is a suit for personal injury and loss because of damage to an automobile struck by a train at a highway crossing.The declaration is in two counts.In the first count the appellant alleges, substantially, that, as she approached the highway crossing on the Van Cleave and Ocean Springs public highway, she observed the "stop" signal, looked both ways, and saw no train.She drove up on the railroad track at the crossing, which was defective, in that there was a declivity of about three inches between the rails.This declivity caused her car to "jerk," and the engine was "killed."She made an unsuccessful attempt to start the engine.She then discovered a train approaching at a distance of about three miles.Unable to start the motor, she alighted, and undertook to push the car from the track.The front part of the car was over, but the rear end was between the rails.Failing to push the car, she tried to flag the train, using for that purpose her handkerchief and a bright red dress she was wearing; that the engineer in charge of the train gave no heed, and she became very much frightened, and ran away for safety.She was some distance away when her car was struck by the locomotive, and demolished.

The second count details the injuries suffered by her, due to fright occasioned by this occurrence.She was not physically injured, except as a result of the fright.

The proof shows that appellant left the track when the train was about a half mile away, and that she ran about seventy-five feet, and stopped until after the collision.

The cause was submitted to the jury on the question of damage to the car, resulting in a verdict for plaintiff, appellant here, of four hundred dollars.Appellant makes no complaint of the trial court in so far as concerns the judgment for damage to the car.The only ground of error seriously argued is the action of the trial court in refusing to permit plaintiff to submit to the jury the question of damages for injuries...