Terry v. New Orleans Great Northern Railroad Co.

• Decision Date: 10 February 1913
• Docket Number: 15,388
• Citation: 103 Miss. 679,60 So. 729
• Court: Mississippi Supreme Court
• Parties: MRS. A. H. TERRY v. NEW ORLEANS GREAT NORTHERN RAILROAD COMPANY

60 So. 729

103 Miss. 679

MRS. A. H. TERRY v. NEW ORLEANS GREAT NORTHERN RAILROAD COMPANY

No. 15,388

Supreme Court of Mississippi

February 10, 1913

APPEAL from the circuit court of Marion county, HON. A. E WEATHERSBY, Judge.

Suit by Mrs. A. H. Terry against the New Orleans Great Northern Railroad Company. From a judgment for defendant, the plaintiff appeals.

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

Reversed and remanded.

Whitfield McNeil & Whitfield, attorneys for appellant.

From a very elaborate brief of counsel for appellee, it appears that this peremptory charge was given on the notion that there was no causal connection between the blocking of the public crossing by the railroad, and the injury inflicted on Mrs Terry from which she sustained the damages. Since this case was appealed this court has most correctly decided that in just exactly such a case the liability is clear on the part of the railroad, and that the causal connection between the blocking by the railroad of the public crossing and the injury is perfectly plain.

We refer to the case of Illinois Central Railroad v Engle, 60 So. 1. REED, J., delivering the opinion: "The appellee sued to recover from appellant actual and punitive damages sustained by reason of her detention at a crossing blocked by appellee's trainmen. There was a verdict for one thousand dollars. Appellant was ill, and went in a buggy to see a physician about eleven miles from her home. On the trip it was necessary to cross appellee is railroad track. In going the track was blocked for twelve minutes, and in returning for forty-two minutes. The appellant was kept waiting in the public road at a railroad crossing for the total time of forty-four minutes. It was proper for the jury to award her damages."

We most respectfully submit that this case is the exact counterpart of the one we are presenting, and that this decision is the end of this controversy, and settles the proposition that the defendant was liable, and that the causal connection between the blocking of the public road and the injury is plain. There really is no need for the court to go one step further, it can stop, standing upon this authority, and promptly reverse this judgment. But out of deference to our good friend, Mr. Mounger, who has labored strenuously and elaborately to save this utterly weak case, we will briefly state the general principles governing as to the causal connection between the act and the injury and then refer to some decisive authorities, and submit the case.

In the case of the Cumberland Telephone Company v. Woodham, 54 So. 890, opinion by Chief Justice SMITH, the court most accurately announced the doctrine of proximate cause as follows: "It is true appellants could not have anticipated that the particular injury complained of would have resulted either from their negligence, or that the injury would have occurred in the particlar manner in which it did, but they could and ought reasonably to have anticipated that some injury would result therefrom."

We have found this admirably clear statement of the true principle emphatically reiterated in a very recent case from the Indiana Supreme Court, Cleveland, Concinnati, etc., R. R. Co. v. Paul O. Tanner, 39 L. R. A. (N. S.), 20. In that case the railroad company was held liable for permitting a train to stand on a street crossing in violation of the statute, for injury thus caused to private property through the inability of the city fire apparatus to reach the property because of such obstruction. This is a fine case which we submit to the court's attentive consideration. In the course of the opinion it is said on page 22: "Violation of the statutory duty is negligence per se and when injury and damage flow directly therefrom as a natural and probable result of a wrongful act, liability is incurred by the wrongdoer," citing perhaps twenty authorities, and proceeding as follows: "While consequential damages which may be recovered are such as might reasonably be anticipated by the perpetrator of the wrongful act, and must be the natural and probable effect of the wrongful act, yet it is not essential to a recovery against the wrongdoer that he should have foreseen the identical injury to the particular person. If the act has a tendency to injure someone, and finally does so, the wrongful act is a proximate cause;" citing a large number of authorities.

When the court said that it was not essential that the wrongdoer should have foreseen the identical injury to the particular person, he announced the exact doctrine Chief Justice SMITH announced in the Woodham case. The same doctrine is announced in the case of Houren v. Chicago, M. & St. P. R. R. Co., 236 Ill. 620.

The great repository of all the law on this subject of proximate cause is the splendid monographic note to the case of Gilson v. Delaware, etc., Canal Co., 36 Am. St. Rep. 807 to 861 inclusive. We shall quote but briefly, commending the whole note to the careful consideration of the court. It said on page 808: "But the practical construction of proximate cause by the courts has come to be the cause which actually led to and which might have been expected to be directly instrumental in producing the result." State v. Manchester, 52 N.H. 552.

And again it is said, page 809: "A proximate cause is one without which the accident would not have occurred," taken from Taylor v. Baldwin, 78 Cal. 517.

And again Mr. Freeman states it thus, page 809: "In determining what is the proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence."

And again on page 810 he points out that in order to be the proximate cause it is not necessary that the result should be inevitable, if it was natural; and once more on page 810, in exact conformity with Judge SMITH'S opinion in the Woodham case, Mr. Freeman says, paragraph D.: "On the other hand it appears to be an accepted principle that the liability of the defendant does not depend upon whether, by the exercise of ordinary prudence, he could or could not have foreseen the precise form in which the injury actually resulted, and that he may be held for anything which, after the injury is complete, appears to have been a natural and probable consequence of this act;" citing a multitude of cases, and at the conclusion he says: "If we combine this principle with the one stated in the preceding paragraph, the result seems to be that, when the act complained of was such that, in view of all the circumstances, it might not improbably cause damage of some kind, the doer of the act cannot shelter himself under the defense that the actual consequence was one which rarely follows from that particular act."

We direct finally the court's most special attention to what Mr. Freeman says in paragraph 37 of the note at page 851, under the caption of "Functions of Court and Jury in the Determination of Proximate and Remote Cause." He thus clearly and emphatically states the rule: "There appears to be no dispute as to the proposition that the question of causal connection between the wrongful act and the injury complained of is ordinarily for the jury, under proper instructions from the court;" citing fifty or a hundred authorities.

Apply this to the case in hand. It is not perfectly plain that the court most greviously erred in undertaking to say, as a matter of law, that there was no causal connection in this case? Just exactly the counterpart of the case supra, in which Judge REED delivered the opinion. Engle v. I. C. R. R. Co., Miss. .

Other cases referred to by Mr. Freeman are as follows: "The case of Andrews v. Mason City, etc., Ry. Co., 77 Iowa 669, as authority for the proposition that if a noise, made by a train which is obstructing a public highway and has continued to so obstruct it for an unreasonable length of time, frightens a team, the fact that said team got frightened is a sufficient cause for damages against the defendant railroad company.

The case of Pa. R. R. Co. v. Kelly, 31 Pa. St. 377, is cited as holding that the question of proximate cause was one for the jury, and this was a case involving the blocking of a highway by a train for an unreasonable length of time in violation of a state statute prohibiting such blocking.

In a case involving the omission by the railroad company to give signal at public crossing, the supreme court of Illinois held that where the question of the causal connection is doubtful, it should be submitted to the jury, as in the case of Chicago R. R. Co. v. McDaniels, 63 Ill. 122. To the same effect is Orcutt v. Pac. Coast R. R. Co., 85 Cal. 291.

Mr. Freeman further points out in "g" of his note above mentioned that in the case of Metallic Compression Casting Co. v. Finchburg R. R. Co., 109 Mass. 277, the supreme court held a railroad company liable for negligently cutting in two the fire hose which had been laid across its track and thus caused the destruction of plaintiff's building. He further points out that that case was followed in the case of White v. Colorado Central R. R. Co., 5 Dill. 429, where a railroad company's negligence in storing gunpowder in a building with other goods was held to be the proximate cause of the loss of goods by fire on the ground that the firemen were thereby deterred from approaching the building.

Surely if the railroad company can be held to be liable for blocking a highway, and thereby preventing the fire company from crossing the track to put out the fire, on the same principle they should be held liable for blocking a highway, and preventing a physician from crossing a track getting to a human being suffering from great pain. A physician is as liable to be called at any time as the fire company, but the...