Thompson v. Mississippi Cent. R. Co

• Citation: 175 Miss. 547,166 So. 353
• Decision Date: 09 March 1936
• Docket Number: 32056
• Court: Mississippi Supreme Court
• Parties: THOMPSON v. MISSISSIPPI CENT. R. CO

166 So. 353

175 Miss. 547

THOMPSON v. MISSISSIPPI CENT. R. CO

No. 32056

Supreme Court of Mississippi

March 9, 1936

Suggestion Of Error Overruled, April 20, 1936.

(In Banc.)

1 NEGLIGENCE.

"Proximate cause" of an injury is that cause which in natural and continuous sequence unbroken by any efficient intervening cause produces the injury, and without which the result would not have occurred.

2 RAILBOADS.

Failure of train operators to give statutory warning signals held not to render railroad liable for motorist's death where motorist was found to have seen train and by exercise of ordinary care could have stopped in time to have avoided accident.

3 NEGLIGENCE.

To establish right to maintain action for negligence, burden is on plaintiff to show that there was negligent act or omission by defendant, and that it was proximate cause of injury, or a cause which proximately contributed to it.

4 NEGLIGENCE.

Burden of proof is on defendant as to contributory negligence, and does not come into play unless plaintiff has sustained burden of showing defendant's negligence which was proximate cause of injury.

ETHRIDGE, J., dissenting.

HON. R. L. CORBAN, Judge.

APPEAL from the circuit court of Adams county HON. R. L. CORBAN, Judge.

Action by Warren H. Thompson against the Mississippi Central Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Engle & Laub and W. A. Geisenberger, all of Natehez, for appellant.

Travelers on the highway have a right to insist that signals be given.

L. & N. R. R. Co. v. Crominarity, 86 Miss. 476, 38 So. 633.

A traveler has the right to demand the giving of the statutory signals of blowing a whistle or the ringing of a bell and a railroad company is liable for the injury sustained if there is a failure.

Skipwith v. Mobile & O. R. R. Co., 95 Miss. 50, 48 So. 964.

It is the duty of a railroad company in approaching a highway crossing to give the warning required by statute, and if it fails to do so it is guilty of negligence.

Gulf, Mobile & Northern Railroad v. Seymour, 114 So. 35, 148 Miss. 456; A. & V. R. R. Co. v. McGee, 78 So. 296, 117 Miss. 370.

Under the statute, section 6125, Code of 1930, requiring bell and whistle at crossings, the appellee was negligent. Hines v. Moore, 124 Miss. 500, 87 So. 1.

The person using the highway was entitled to the signal so that his attention might have been directed to the train and he might appreciate its nearness and the fact that it was oncoming and in motion.

Error was committed by the introduction of photographs of posed pictures of situations. The train of the appellee was posed at or near the scene of the accident, and the pictures taken of such posed situation were placed before the jury over the objections of the appellant.

Welch v, L. & N. R. R. Co., 163 Ky. 103, 173 S.W. 338; Fore v. State, 75 Miss. 727, 23 So. 710; Grant v. Railroad Co., 176 Ill.App. 292; Burns v. Saylers, 270 Ill.App. 46; Brett v. State, 94 Miss. 669, 47 So. 781.

Our court has heretofore held that it is the duty of the engineer and fireman to use reasonable care and diligence in maintaining a lookout for people crossing a railroad on a public highway, particularly one that is much used as was the Liberty Road Highway in this ease, and our court has further held that the fact that whether or not a railroad exercises care and diligence under the circumstances and whether the servants of the railroad discovered the approaching automobile and appreciated the impending danger as soon as he should have done so by the exercise of reasonable care and diligence, and exercised this diligence in notifying the engineer, were all questions of fact to be decided by the jury and not of law for the court; and our court has further enunciated the law in the same case, that if the servants of the railroad company were negligent either in running the train at an excessive rate of speed or in failing to maintain a proper lookout, or botts, the further question was for them to decide whether or not this negligence was the proximate or one of the contributing causes of the accident.

Hines v. Moore, 87 So. 1, 124 Miss. 500; Railroad Co. v. Williams, 114 Miss. 236, 74 So. 835; Railroad Co. v. McGee, 117 Miss. 370, 78 So. 296; Railroad Co. v. Dillon, 111 Miss. 520, 71 So. 809; Power Co. v. McEachern, 109 Miss. 380, 69 So. 185.

Brady, Dealt & Brady, of Brookhaven, for appellee.

Appellant says, "appellant might have looked and still not have seen this train." If the jury had found that she did not see it, then these instructions, or any of them, would not have authorized a verdict for appellee. The object of section 6125, Code of 1930, is to give knowledge of the approach of the train and if the traveler has knowledge by sight, all that the signals would accomplish has been accomplished.

Railroad Co. v. McGee, 117 Miss. 370, 78 So. 296.

To assert, as appellant is asserting, that there is negligence parse in failing to blow the whistle or ring the bell, every foot of the way from a point three hundred yards from the crossing, without reference to the driver's having heard the warning in ample time, is utterly indefensible and cannot have been urged in good faith.

Pugh v. I. C. R. R. Co., 23 So. 356; Bufkin v. L. & N. R. R. Co., 161 Miss. 594, 137 So. 517; Billingsley v. I. C. R. R. Co, 100 Miss. 612, 56 So. 790; Yaoo & Miss. Valley R. R. Co. v. Cox, 132 Miss. 564, 97 So. 7.

The statute did not and does not require the appellee to ring its bell and blow its whistle if the deceased knew the train was coming either by seeing it or hearing the whistle.

Y. & M. V. R. R. Co. v. Green, 167 Miss. 137, 147 So. 333.

All the instructions complained of are predicated squarely upon the proposition that the appellant cannot successfully claim the benefit of the warning statute because the deceased had by actual knowledge every protection that warning signals could have given.

It seems unnecessary to cite other authorities but in the McGee case this court stated that the doctrine there approved was supported by good authority.

C. R. I. & P. R. R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Gundry v. Ry. Co. (Cal.), 286 P. 718; Railway Co. v. Judah, 65 Kan. 274, 70 P. 346; Hutchinson v. Ry. Co., 161 Mo. 246, 61 S.W. 635, 852, 93 S.W. 931; Kilcummings v Ry. Co., 185 Ill.App. 370; Gosa v. Ry. Co., 67 S.C. 347, 45 S.E. 810; Hiekey v. Railroad Corp., 8 F.2d 128; Ry. Co. v. Elliott, 28 Ohio St. 340; Pekalinsky v. R. R. Co., 84 N.Y. 424; Daniels v. Transit Co., 125 N.Y. 407, 26 N.E. 466; Haben v. Electric Co., 22 A.D. 426, 88 N.Y.S. 38; Millinall v Ry. Co., 109 A.D. 139, 95 N.Y.S. 1097; Rayner v. R. R. Co., 204 A.D. 135, 198 N.Y.S. 261.

If, from all the evidence, the jury believed that the deceased did see or hear the train and still undertook to cross, section 6125 no longer had point or meaning and it was proper so to instruct the jury. There would no longer be any possible causal connection between a failure to give statutory signals and the collision.

Westerkamp v. R. R. Co., 41 Col. 290, 92 P. 687; Railroad Co. v. Kirby, 86 Ill.App. 57; Railway Co., v. DeFrietas, 109 Ill.App. 104; Payne v. Railroad Co., 39 Iowa 523; Blumenthal v. Railroad Co., 97 Me. 255, 54 Ail. 747; McCarthy v. Railroad Co., 90 A. 490, 54 L. R. A. (N. S.) 140; State v. Dettner, 27 S.W. 1117; Hook v. Railway Co., 162 Mo. 569, 63 S.W. 360; State v. Gurlcy, 70 S.W. 875; v. Railroad Co., 178 N.Y. 1, 70 N.E. 68; Fiddler v. Railroad Co., 64 A.D. 95, 71 N. Y.S. 721; Swart v. Railroad Co., 81 A.D. 402, 80N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1131; McKinley v RailwayCo., 86 N.Y.S. 461, 91 A.D. 153; Railway Co. v. Wilson, 60 S.W. 438; Railway Co. v. Skinner, 119 Va. 843, 89 S.E. 887; Marshall v. Railroad Co., 125 Wis. 96, 103 N.W. 249; Railway Co. v. Andrews, 130 F. 65, 64 C. A. 399; Railway Co. v. Collier, 157 F. 347; Railroad Co. v. Cundicff, 171 F. 319, 96 C. A 211; Railroad Co. v. Hurlburt, 221 F. 907, 137 C. C. A. 477.

The employees of a railroad company are under no obligation to be on the lookout for, or anticipate the movements of, a traveler upon a highway until he had arrived at or passed the statutory stop sign and entered upon the right-of-way.

Mobile & Ohio R. R. Co. v. Johnson, 157 Miss. 266, 150 So. 827, 165 Miss. 397, 141 So. 581; Mobile & Ohio R. R. Co. v. Bryant, 159 Miss. 528, 132 So. 539.

Appellee is asserting a cause of action as to which his declaration is entirely silent. There is no hint in the declaration of any failure of duty on his part of the engine crew to keep a proper lookout, on or off of the right-of-way.

There was not before the jury any issue as to negligence of the appellee with respect to speed of the train, and that was entirely properly for the court to instruct the jury that as a matter of law, there was no negligence in this respect.

The same status obtained in the matter of conditions at the crossing. The declaration alleges that there is a sharp curve in the track, that the view is obstructed "to a certain extent" by the banks, and that these banks could have been cut down at a reasonable cost; but this situation was not charged to be a negligent situation.

There is no hint in the record that before the county authorities elevated the Liberty highway on the Natchez side of the crossing, some two years before the accident, the crossing did not comply one hundred per cent with the requirements of section 6127.

No instruction is objectionable as being on the weight of evidence because it assumes as true matters proven by both parties about which there is no controversy.

Railroad Co. v. Phillips, 70 Miss. 14, 11 So. 602; Moody v. Galigher, 1 Miss. Dee. 435.

No one of the cases cited by appellant bearing on the...