Southern Railway Co. v. Floyd

• Decision Date: 15 May 1911
• Docket Number: 14,589
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY CO. IN MISS. v. S. A. FLOYD

55 So. 287

99 Miss. 519

SOUTHERN RAILWAY CO. IN MISS. v. S. A. FLOYD

No. 14,589

Supreme Court of Mississippi

May 15, 1911

APPEAL from the circuit court of Carroll county, HON. G. A. MCLEAN Judge.

Suit by S. A. Floyd against the Sorthern Railway Company. From a judgment for plaintiff, defendant appeals.

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

Case affirmed.

Catching & Catching, for appellant.

Contributory negligence is so clearly made out that the court ought to have instructed the jury to find for the appellant.

In Corcoran v. St. Louis, I. M. & S. R. Co., 16 S.W. 413 the supreme court of Missouri said:

"Whether in any particular case the plaintiff was guilty of contributory negligence is generally a question of fact for the determination of a jury, but when no other inference than that of negligence can be fairly and reasonably drawn from the evidence, as in this case, it should be declared as a matter of law."

This court has held that where the evidence and inferences therefrom make it clear that plaintiff's negligence produced the injury, or contributed as the proximate cause thereof, it is proper to direct a verdict for defendant. McCurty v. Railroad, 67 Miss. 601; Railroad Co. v Mason, 51 Miss. 234.

The court gave this instruction for the appellee:

"The court instructs the jury in this case, if the plaintiff has shown by evidence that the public highway or road crossing at Malmaison which is alleged to have been obstructed by defendant leaving cars over said crossing was a "highway," "public road," that the plaintiff himself was detained by said obstruction for a longer period than five minutes, and that the detention or obstruction caused the injury complained of, then the defendant is liable for all damages sustained as consequence of the carelessness and negligence of their agents or servants in obstructing the said crossing."

We submit that no argument should be required to show that this instruction is manifestly erroneous, and that it could not have failed to make the jury believe that in order that the plaintiff might recover it was only necessary for him to show that the highway had been obstructed for a longer period of time than five minutes, and that the appellee was injured. The effect of the instruction was to inform the jury that if they believed these two things the plaintiff was entitled to recover.

It wholly omits all reference to the question as to whether the obstruction was the proximate cause of the injury. In Cooley on Torts, page 6, it is said:

"If the wrong and the resulting damages are not known by common experience to be natural and usual in sequence, and the damage does not, according to the ordinary course of events follow from the wrong, then the wrong and the damage are not sufficiently conjoined or concatenated as cause and effect to support an action."

This test, we think, is supported by the authorities without exception. In 29 Cyc. 492 it is said:

"To constitute proximate cause creating liability for negligence the injury must have been the natural and probable consequence of a negligent act. It is the cause which naturally produces a given result. The negligence must be such that by the usual course of events it would result in injury unless independent moral agencies intervene in the particular injury."

Again on page 496 it is said:

"A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a dstinct, successive, unrelated, and efficient cause of the injury. If no danger existed in the condition except because of the independent cause such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the circumstances which, because of the prior defective condition results in injury, such subsequent act or condition is the proximate cause. But where the condition was such that the injury might have been anticipated, it will be the proximate cause notwithstanding the intervening, agency, or where such condition rendered it impossible to avoid injury from another contributing cause."

Applying the law as thus laid down it is impossible to say that the mere fact that the highway was obstructed was the cause of the injury. There was no negligence on the part of the appellant in creating the hole into which the appellee fell, or in allowing it to remain. It was upon its right of way and apparently, according to the testimony, had been created as the result of throwing up earth from its right of way on to its railroad embankment. The only negligence, therefore, was the obstruction of the highway. How can it be said that by common experience and as a natural sequence this obstruction would have resulted in the appellee falling into this hole and sustaining the injuries complained of? How can it be said that the damage, according to the ordinary course of events, followed from the obstruction. The obstruction did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible. That is to say, the obstruction gave rise to the occasion by which the appellee attempted to pass around the obstruction and get back into the highway. It could not possibly have been anticipated as the probable result of this obstruction that the appellee, in attempting to evade the obstruction, would pursue the course he did, of attempting on a dark and cloudy night to travel along these railroad tracks and step off into a hole.

The case of V. & M. R. Co. v. Alexander, 62 Miss. 499, clearly illustrates what is meant by proximate cause. In that case the train of the railway company was left for about an hour, with a part of it extending three and a half feet into the street, at a crossing. The court said:

"It was improper to thus partially obstruct the crossing, and for any damage directly treaceable to this wrong of the appellant it is unanswerable."

That position is undoubtedly correct. It was equivalent to saying that the railway company was not liable for any damage which was not directly traceable to the obstruction. Under the facts of that case the plaintiff was held not guilty of contributory negligence, and clearly he was not so guilty. The injury complained of was held to be directly connected with the obstruction, and therefore it was held that the obstruction was the proximate cause of the injury. In this case, however, the injury which the appellee sustained is not directly traceable to the obstruction of the highway at Malmaison.

But the instruction is fatally defective in another particular. The jury are told that "if the plaintiff has shown by evidence" that the highway was obstructed, that the plaintiff was detained by the obstruction, and that this obstruction caused the injury, the appellant must be found liable. They are not told that they must believe from the evidence that these things happened; they are simply told that it is sufficient to make the defendant liable if the plaintiff has shown by evidence that these things happened. The plaintiff undoubtedly has shown by evidence that the highway was obstructed, that he was detained by the obstruction, but even if it could be inferred that this obstruction caused the injury complained of, the instruction is defective because the jury are not required by it to believe that these things have been established by the evidence. Under this instruction, although the jury might have believed that the evidence introduced by the appellee was false, yet they are required to find the appellant liable because the appellant has shown by eveidence. In other words, the jury are not required by the instruction to believe from the evidence, but they are required to find the defendant liable if there is evidence showing the things recited, although they might totally disbelieve this evidence. The words "if the plaintiff has shown by evidence" and not at all equivalent to the words "if the jury believe from the evidence." The distinction between the two expressions is clear and distinct. If for no other reason, there fore, this case must be reversed.

M. B. Grace, for appellee.

We submit no argument is necessary here to show that the plaintiff in the court below was not guilty of contributory negligence per se. The record conclusively shows that he exercised all the care, caution and prudence any ordinarily careful and prudent man would have exercised under the same circumstances. He says, "he was acquainted with the premises and of the railroad tracks at this place, and, to take the precautionary measure to prevent injury, he crossed over the side track and main line and to a place where he thought he was safe." His actions at that time seem to indicate that he knew there was a low place near where the highway crosses the railway tracks, and was trying to avoid falling into it, was the reason he crossed over all the tracks at the particular point he did. There was nothing apparently about the premises which indicated to him he would probably be injured by going? around the cars and getting into the highway.

A further precautionary measure taken and adopted by the plaintiff in the court below was, instead of riding his horse or mule around the cars, he "cooned" carefully his way around the cars leading the animal. Mark you, the hole which he fell into was dug there the day of the accident, or about that time. See S. I. Donley's testimony. It is said, "The unlawful or unreasonable obstruction of a highway is a public nuisance, and any one injured, or, who sustains damages as a consequence of such...