St. Louis & S. F. Railway Company v. Nichols

Decision Date14 December 1931
Docket Number29505
Citation138 So. 364,161 Miss. 795
PartiesST. LOUIS & S. F. RAILWAY COMPANY v. NICHOLS
CourtMississippi Supreme Court

Division A

1 EVIDENCE.

Testimony that fact did not occur by witness so situated that in ordinary course of events he would have heard or seen fact warrants finding that fact did not occur.

2 RAILROADS.

In crossing collision case, whether statutory signals were given held for jury.

3. APPEAL AND ERROR. Railroads.

Where jury could not reject railroad's evidence regarding circumstances of collision at crossing, giving instruction on statutory presumption held reversible error.

4 NEGLIGENCE. Railroads.

In crossing collision case, court properly submitted to jury question of motorist's contributory negligence and instructed jury to diminish damages in proportion to such negligence, if any.

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Marshall county HON. T. E. PEGRAM, Judge.

Action by Barry Nichols, a minor, suing by his father and next friend, George J. Nichols, against the St. Louis & San Francisco Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Smith & Smith, of Holly Springs, D. W. Houston, Sr. and Jr., of Aberdeen, and E. T. Miller, of St. Louis, Mo., for appellant.

The testimony of witnesses that they did not hear the ringing of the bell on a locomotive as it approached a crossing without proof that the witnesses listened for the bell, or that their attention was in any way directed to it, or that they probably must have heard the bell if it did ring, cannot prevail against the positive testimony of other credible witnesses that the bell did ring at the time in question.

Mobile & Ohio R. Co. v. Johnson, 157 Miss. 266, 126 So. 827.

If either the whistle or bell is sounded for the required distance, or if one is sounded for part and the other for the remainder, then that is sufficient.

N. O. & N.E. R. Co. v. Hegwood, 124 So. 66.

Where the negative testimony as to giving statutory signals is against the overwhelming weight of the evidence the verdict should be reversed.

Mobile & Ohio R. Co. v. Bennett, 127 Miss. 413, 90 So.113.

When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near, he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk.

Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 65, 72 L.Ed. 167.

Where a driver of an automobile failed to heed a signal at a railroad crossing made in accordance with the Mississippi law, the passengers were required to remonstrate with the driver for his disregard of the statute, and to cause him to stop if they could do so, and to exercise, themselves, some degree of care and caution in respect thereto.

Columbus & G. R. Co. v. Buford, 150 Miss. 832, 116 So.817.

A person riding in an automobile with another should not close his eyes to manifest danger or fail to give warning of any danger that becomes apparent to him.

Y. & M. V. v. Luken, 137 Miss. 572, 590-1, 102 So. 393.

It is a mistake to suppose that a passenger in an open buggy need not exercise the commonest prudence, the most ordinary care, when the danger of his surroundings is apparent. Ordinary and natural prudence required him to take some action and to check or remonstrate with the driver.

I. C. R. R. Co. v. McLeod, 78 So. 334.

When the required warnings have been given of the approach of the train and the statutory stop sign was situated at the crossing a traveller on a highway should not, and ordinarily has no legal right to, ask for more.

Mobile & Ohio R. Co. v. O'Bryant, 159 Miss. 528, 132 So. 539; Hancock v. I. C. R. Co., 158 Miss. 688, 131 So. 83, 84.

The wife, as the guest of her husband, or any other person as the guest of the driver of an automobile or other vehicle may not absolutely rely upon such driver. Such passenger must exercise reasonable care according to the circumstances surrounding them at the time for their own safety.

Gulf M. & N. R. Co. v. Brown, 138 Miss. 39, 102 So. 855.

When the fact and circumstances have been proven, or have been found by the jury when evidence relative thereto is conflicting, the presumption of negligence raised by the statute disappears, and the liability of the defendant must then be determined from the evidence, and the jury should find for the defendant, unless it appears from the evidence that it was guilty of negligence which caused the plaintiff's injury.

Hines, etc., v. McCullers, 121 Miss. 666.

It is not true that the law requires the facts to exonerate the railroad company from blame. The law requires the facts to be produced, and if the facts are not produced in evidence, the presumption prevails; but when the facts are produced the jury must decide the question from the facts, and unless the facts show negligence the plaintiff does not prevail.

Columbus & G. Ry. Co. v. Fondren, 154 Miss. 40, 121 So. 838.

When in an action for damages from an injury of the character described in the statute the facts and circumstances of the injury are given in evidence by the plaintiff at any stage of the trial, whether it conflicts with similar evidence of the defendant or not, or are given in evidence by the defendant only, and which evidence the jury is without the right to reject, no instruction should be given to the jury on the statutory presumption.

New Orleans & G. N. R. Co. v. Walden, 133 So. 241; Eastman, Gardiner & Co. v. Sumrall, 133 So. 212.

Supposing that it had not been for the intervention of a responsible third party, the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between the negligence and damage is broken by the interposition of the independent responsible action. I am negligent on a particular subject matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third party. If so, the person so intervening acts as a non-conductor and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable.

Louisville & N. R. Co. v. Daniells, 135 Miss. 33, 99 So. 434; Note 54, C. J. 1346; Batavia Turnp., etc., Bridge Co. v. Hodapp, 13 Oh. Cir. (N. S.) 308, 32 Oh. Cir. Ct. 680; Note, 45 C. J. 1346; citing Washington, etc., R. Co. v. Vaughn, 111 Va. 785, 69 S.E. 1035.

Where two instructions are given, both contradictory of the other, the erroneous instruction is not cured, and the contradiction deprives the jury of a safe guide to follow in reaching an accurate and just decision, and in such cases reversals must be had.

Sellers v. Lofton, 149 Miss. 849, 116 So. 104; A. & V. Ry. v. Cox, 106 Miss. 33, 63 So. 334; Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93; C. & G. v. Phillips, 133 So. 123.

Foster, Rice & Foster and Harwood & McQueen, all of Tuscaloosa, Ala., and L. G. Fant, Sr. & Jr., of Holly Springs, for appellee.

It is settled law in Mississippi that the testimony of a witness that he did not hear the statutory signals given is admissible for the purpose of proving a negative fact.

Y. & M. V. R. R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; Gulf & S. I. R. Co. v. Carlson, 137 Miss. 613, 102 So. 168 (1924); Grantham v. G. & S. I. R. Co., 138 Miss. 360, 103 So. 131 (1925); G. M. & N. R. Co. v. Hudson, 142 Miss. 542, 107 So. 369 (1926); Lucas v. Goff, 33 Miss. 629; Columbus & Greenville R. Co. v. Lee, 149 Miss. 543, 115 So. 782 (1928); Y. & M. V. v. Beasley, 130 So. 499 (1930) (Miss.); New Orleans & N.E. R. Co. v. Hegwood, 155 Miss. 104, 124 So. 66 (1929).

The positive testimony of witnesses on one side that the statutory signals were given is not sufficient to warrant a peremptory instruction where a witness, who was in a position to bear and see testified that the signals were not given.

Yazoo & M. V. R. R. Co. v. Beasley et al., 130 So. 499.

If there was any evidence of negligence on the part of appellee, the jury may have found him negligent and reduced his damages accordingly. He is still eligible to receive a judgment.

Laws 1920, chapter 312, Hemingway's Miss. Code, 1927, section 516.

It is not negligence per se for a passenger in an automobile to take his eye off the road ahead. And failure to stop before driving on tracks does not bar recovery.

Laws 1924, chapter 320, Hemingway's Miss. Code 1927, section 7966; N. O. & N.E. R. Co. v. Hegwood, 155 Miss. 104, 124 So. 66.

The instruction granted appellee on the prima facie presumption does not shift the burden of proof.

It does not excuse the jury from deciding the facts. The most that can be said against the instruction in the instant case is that it leaves it to the jury to decide when defendant has produced evidence.

If there was error in this instruction, it was most thoroughly explained away, and completely cured by the many emphatic instructions on this point that were given for the defendant. And does not come within N. O. G. N. R. R. Co. v. Walden, 133 So. 241, and Eastman, Gardiner & Co. v. Sumrall, 133 So. 212; Columbus & G. Ry. Co. v. Fondren, 145 Miss. 679, 110 So. 365.

Even though an instruction...

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