Southern Railway Company v. Murray

• Decision Date: 28 October 1907
• Citation: 91 Miss. 546,44 So. 785
• Court: Mississippi Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY v. RUFUS L. MURRAY

44 So. 785

91 Miss. 546

SOUTHERN RAILWAY COMPANY v. RUFUS L. MURRAY

Supreme Court of Mississippi

October 28, 1907

October 1907

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Murray appellee, was plaintiff in the court below; the railroad company, appellant, was defendant there. From a judgment in plaintiff's favor, defendant appealed to the supreme court.

This case has been three times before the supreme court. Southern R'y Co. v. Murray, 39 So. 478; Ibid. 42 So. 1047.

Plaintiff sued for the killing of two cows by defendant's locomotive on a highway crossing over defendant's track. The testimony was sharply conflicting.

Plaintiff's witnesses testified that the lay of the land and the location of houses, trees, etc., were such that there was no difficulty in the engineer's seeing the cows upon the track, lessening the speed of his train, and giving timely warning by bell or whistle. The engineer and other witnesses for the railroad company testified that by reason of the topography of the country, the location of houses near the track, and the early hour, 6:30 a. m. on a December morning, the cows could not have been seen before they were seen, not until they were very near, and that as soon as they were seen such precautions as could be taken were taken to avoid injuring them. The case was submitted to a jury, under instructions of the court, and the verdict was for the plaintiff.

The railroad company assigns for error the action of the court below in granting the two following instructions for the plaintiff: "The court charges the jury, for the plaintiff, that the law requires that every railroad company shall cause each locomotive engine run by it to be provided with a bell of at least thirty pounds weight or a steam whistle which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any highway or street, and the bell shall be kept ringing or the whistle shall be kept blowing until the engine has stopped or crosses the highway or street; and if the jury believe, from the evidence in this case, that the defendant failed to ring the bell or blow the whistle at the highway or street crossing, then the defendant is guilty of negligence."

"The court charges the jury, for the plaintiff, Murray, that, in all actions against railroad companies for damage done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury."

Decree affirmed.

Bozeman & Fewell, for appellant.

While Code 1906, § 4045, requires every railroad company to furnish each of its locomotives with a bell of thirty pounds' weight, or a steam whistle which can be heard distinctly at a distance of three hundred yards, and further, requires the bell to be rung or the whistle to be blown at the distance of at least three hundred yards from a railway crossing, and continue such warning of the locomotive's coming until it has passed the crossing, yet under the circumstances shown in evidence it was erroneous in the lower court to instruct the jury that under such law and under the facts shown in evidence, if the jury should find that the defendant company failed to ring the bell or blow the whistle at the highway or crossing at Fourth avenue, then they must find the defendant guilty of negligence. It is perfectly clear, in fact it was testified to by every witness for the plaintiff, that those present when the cows were injured knew of the approaching train while it was at least a quarter mile from the crossing. In fact the plaintiff's witnesses testified that they were trying to get the cows off of the track for some time before the train reached the crossing, and that as they would run one cow off another would come forward upon the track. Under the circumstances the giving of a charge to the jury based upon the above statute was prejudicial to the appellant. The charge was in effect a peremptory instruction to find for the plaintiff. The objects and purposes of the statute have been so often discussed by this court that we do not care to discuss them, save to say that its purpose is to give notice to pedestrians, cattle, etc., on the crossing of the approach of a train.

The court also erred in granting for the plaintiff the instruction based on Code 1906, § 1985, reciting that injury to persons or property by railroads is prima facie want of skill on the part of the servants of the company in reference to such...