Yazoo & M. V. R. Co. v. Cox
| Decision Date | 02 July 1923 |
| Docket Number | 23398 |
| Citation | 132 Miss. 564,97 So. 7 |
| Parties | YAZOO & M. V. R. CO. v. COX |
| Court | Mississippi Supreme Court |
Division B. January 1, 1920
RAILROADS. Person using depot premises for own pleasure cannot complain of want of crossing signals or mere negligence.
Where a person is struck and injured by a locomotive of a railroad company in front of the depot in a municipality, and not at a street crossing, failure to blow the whistle or ring the bell for a street crossing in accordance with the provisions of section 4045, Code 1906 (section 6669, Hemmingway's Code), cannot be invoked by the plaintiff. This section is only applicable where the injury occurs on the crossing. The fact that the inhabitants of the municipality congregate at the depot for their own pleasure does not make defendant railroad company liable to one injured upon its track in front of the depot for mere negligence. Those using the depot premises for their own individual pleasure are either trespassers or bare licensees, and the railroad company is only liable for injury to them because of gross, w llful or wanton negligence.
APPEAL from circuit court of Holmes county, HON. S. F. DAVIS, Judge.
Action by S. C. Cox against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
Reversed and remanded.
Clinton H. McKay and Boothe & Pepper, for appellant; Charles N. Burch and H. D. Minor, of counsel.
Under the undisputed facts in this case plaintiff was a trespasser or, at most, a mere licensee, loitering on the depot platform of defendant at night. Defendant owed him no duty until his position of peril was, or could by the exercise of reasonable care, be discovered. His legal status as such is fixed by Railroad v. Arnola, 78 Miss. 787.
The violation of "the crossing statutes," sec. 6669, Hemingway's Code, is charged in the third count of the declaration. The only purpose of the statute is to warn persons using the public highways of the approach of the train. This plaintiff testified that he saw and heard the train coming long before it reached the depot and was fully aware of its approach. It follows that non-compliance with the statute could not possibly have had any causal connection with the accident, and under the admitted facts in this case, it was error to tell the jury that defendant would be liable even for compensatory damages, much less for punitive damages, for failure to sound the statutory warnings as the train approached the street crossings north and south of the depot. The holding of the court in the Billingsley case has been consistently adhered to by this court, and is consonant with sound reason. That this statute is for the protection of persons using the highways is pointed out in Skipwith v. Railroad, 95 Miss. 50, and Billingsley v. Railroad, 100 Miss. 612, and it has never been applied by this court for the protection of trespassers or licensees in the vicinity of, but not on, a highway or street crossing. Furthermore in this instruction the jury is told that if the statute was violated and the plaintiff was injured, the defendant is liable. The question of proximate cause was not submitted to the jury. No principle of law is better settled in this state than that the violation of a statute, though negligence per se, is not actionable unless it be found by the jury to be the proximate cause of the injury.
It is well settled in this state that incorrect instructions are not cured by correct instructions. The only remedy is a withdrawal of the erroneous instruction and the giving of instructions which are correct. The rule is stated in Blashfield on Instructions to Juries, section 24-a. See Y. & M. V. R. R. Co. v. Cornelius, 95 So. 90; L. N. O. & T. R. Co. v. Phillips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; Railroad Co. v. McGowen, 92 Miss. 603; McNeil v. Bay Springs Bank, 100 Miss. 271; Soloman v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677.
It is elementary law in this state that a violation of the speed statute (section 6667, Hemingway's Code), though negligence per se, is not actionable unless the excessive speed is the proximate cause of the accident. This rule was laid down in Railway v. Carter, 77 Miss. 511. See Brown v. Railroad, 103 Miss. 315; Railroad v. Pace, 109 Miss. 667; Hines v. Moore, 124 Miss. 500; Railway v. McGee, 117 Miss. 236; Bonelli v. Branciere, 127 Miss. 556.
P. P. Lindholm and Noel & Neilson, for appellee.
1. Where one of several charges of statutory liability is alleged and proven beyond dispute by the evidence against a railroad company, instructions given on the other count, even though erroneous, are harmless error, and will not work a reversal. Davis, etc. v. Elzey, 126 Miss. 789; 88 So. 630; M. & O. R. R. v. Campbell, 114 Miss. 803, 75 So. 554.
2. Under the rules of the supreme court of Mississippi, a judgment will not be reversed because of granting of erroneous instructions to the jury unless it affirmatively appears from the record that the party complaining there-at was prejudiced thereby, and it resulted in a miscarriage of justice. Rule 11 (101 Miss. 906, 59 So. IX.); Smith v. Shelton, 95 So. 835; Jones v. State, 104 Miss. 871, L. R. A. 1918B, 388.
3. Where plaintiff for whose injury suit is brought was run down and injured by defendant's freight train within the corporate limits of the municipality while such freight train was exceeding the speed limit prescribed by statute, it was not error in the trial court to refuse to direct a verdict for the defendant although it was impossible to stop the train before striking the plaintiff when his danger appeared, where the evidence tended to show that the train when it struck the plaintiff was running at from ten to twenty miles an hour and plaintiff when struck was not between the rails but on the outside near the ends of the cross-ties, and was struck by the pilot beam of the engine back of the left ear just as he whirled to get out of the way of the engine which he had just realized, had suddenly switched over on the track near which he was sitting on the edge of the platform or passage-way, because such facts might reasonably authorize the jury to infer that if the speed had not been exceeded, the blow might have been less violent or plaintiff might have escaped injury altogether. L. & N. R. R. Co. v. Garnett, 129 Miss. 795; Tendall v. Davis, Agent, etc., 129 Miss. 30.
And even though plaintiff might have been guilty of contributory negligence it was still a question for the jury, as all questions of negligence and contributory negligence are for the jury, proof having been made in the case at bar that the railroad company was guilty of violating section 6667 and section 6669 of Hemingway's Code of 1917. Laws of Mississippi 1920, chapter 312; Railroad Company v. Crawford, 99 Miss. 697; Railroad Company v. Carroll, 103 Miss. 830; Davis, D. G. of R. R. v. Elzey, 126 Miss. 789; M. & O. R. R. Company v. Campbell, 114 Miss. 803.
Under contributory negligence statute, in a suit for damages it is only where plaintiff's act is the sole cause of the injury and when defendant's act is no part of the causation, that defendant is free from liability. Ragland v. Lumber Company, 117 Miss. 602. Under our Mississippi statute providing that contributory negligence is no bar to a recovery, instructions to the jury that contain the expression "No causal connection" and also "Negligence of the plaintiff was the sole cause of the injury," is a better instruction than one using the expression "proximate cause." Ragland v. Lumber Company, 117 Miss. 602.
A plaintiff is not precluded from a recovery in an action against a railroad company for personal injury at or near a crossing merely because he saw the approaching train that hit him, more than three hundred yards before it reached the crossing, if it is shown by the proof that the railroad company was negligent in failing to ring the bell and blow the whistle as required by law. Southern Railroad Company v. Murray, 91 Miss. 546.
That plaintiff was a trespasser or a licensee did not in any way affect his right to recover, if the train was running more than six miles per hour, and the excessive speed was the proximate cause of the injury. Railroad v. Pace, 109 Miss. 667; Railroad v. Carter, 77 Miss. 511; Railroad v. Metcalfe, 84 Miss. 242; Howell v. Railroad, 75 Miss. 249.
Argued orally by Clinton H. McKay, for appellant and P. P. Lindholm and E. F. Noel, for appellee.
The appellee (plaintiff) sued and recovered a judgment against the appellant (defendant) for personal injuries caused by being struck by a running train of appellant in the little town of Cruger.
The declaration is in three counts. The theory of the first count is that the depot is centrally located in the town, with the business and residence section closely grouped about it; that the depot platform is habitually used by the citizens of this town as a...
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Thompson v. Mississippi Cent. R. Co
... ... law, the plaintiff cannot complain, because she saw the train ... long before it reached the crossing, and [175 Miss. 556] ... there was no causal connection between the failure to give ... the signal and the plaintiff's injury," and so it ... was said and reaffirmed in Yazoo, etc., R. Co. v ... Cox, 132 Miss. 564, 570, 97 So. 7, 8: "The failure ... to sound these alarms for the crossing was not the proximate ... cause of the injury to the plaintiff, for the reason that he ... saw the approaching train before it reached the crossing, and ... therefore there could ... ...