Yazoo & M. V. R. Co. v. Day

• Decision Date: 23 June 1919
• Docket Number: 20782
• Citation: 82 So. 148,120 Miss. 296
• Parties: YAZOO & M. V. R. Co. v. DAY
• Court: Mississippi Supreme Court

82 So. 148

120 Miss. 296

YAZOO & M. V. R. Co. v. DAY

No. 20782

Supreme Court of Mississippi

June 23, 1919

Division A

1 RAILROADS. Crossings. Signals from cars. Motor cars.

Section 4045, Code 1906, (Hemingway's Code, section 6669) requiring the bell to be rung or whistle blown at a distance of three hundred yards from crossing, does not apply to motor cars used by section hands.

2 RAILROADS. Prima-facie negligence statutes. Applicability.

The prima-facie negligence statute, Code 1906, section 1985 (Hemingway's Code, section 1645), does not apply where a motor car used by railroad section hands frightened a horse at a crossing but did not strike the horse or the cart to which it was attached.

3 RAILROADS. Frightening horses by motor cars at crossing. Question for jury.

Where plaintiff was injured at a crossing because his horses became frightened and ran away, caused by the approach of a motor car operated at night by a section crew without headlight or signals, the question of negligence on the part of the operatives was a question for the jury.

HON. R E. JACKSON, Judge.

APPEAL from the circuit court of Wilkinson county, HON. R. E. JACKSON, Judge.

Suit by Edward B. Day against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

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

Reversed and remanded.

Clinton H. McKay, Chas. N. Burch and H. D. Minor, for appellant.

Where there is a conflict in the testimony as to material facts, a peremptory instruction for either party is improper, and upon consideration of plaintiff's motion for a peremptory instruction, the evidence in its aspect most favorable to defendant must be taken as true. Railroad v. Prine, 118 Miss. 90; Railroad v. Prince, 112 Miss. 20; Trading Co. v. Lumber Co., 110 Miss. 31.

Even where the testimony is undisputed, if the minds of reasonable, men may well differ as to the circumstances of the case, the question of negligence or non-negligence is for the jury and not for the court. Railroad v. Floyd, 55 So. 287; Railroad v. Moore, 81 Miss 15; Railroad v. Mason, 51 Miss. 234, 244.

Whether the omission of those on the motor car to give a signal on approaching a highway crossing was the proximate cause of the injury complained of, is peculiarly a question of fact for the jury under proper instructions by the court. Railroad v. Crominarity, 86 Miss. 464; Railroad v. Armstrong, 93 Miss. 583; Skipwith v. Railroad, 95 Miss. 50.

The failure to equip this section motor car with headlight, bell or whistle was not negligence as a matter of law, and the operatives thereof were not negligent as a matter of law, in approaching this crossing about dusk running at six miles an hour, making no unusual noises calculated to frighten horses, without sounding a warning of their approach and without displaying a headlight, where the car could have been seen, and when it was their purpose and intention to stop the car at the crossing and carry it from the track. McCerrin v. Railroad, 72 Miss. 1013; Railroad v. Howerton, 115 Ky. 89, 72 S.W. 760, 103 Am. St. Rep. 295; Railroad v. Juday, 49 N.E. 843; Clinebell v. Railroad, 110 N.W. 347.

Section 6669 of Hemingway's Code requiring each locomotive engine to be provided with a bell weighing thirty pounds or steam whistle which can be heard distinctly at three hundred yards, and requiring the bell to be rung or the whistle to be blown on approaching a highway crossing, has no application to a small motor car used by railroad section hands, such as the one here involved. Railroad v. Juday, 49 N.E. (Ind). 483; Railroad v. Uremeister, 112 Ill.App. 346.

Section 1645 of Hemingway's Code (the so called prima-facie statute) has no application under the facts of this case, because plaintiff was not struck by the car nor was the injury inflicted by the running of the car. Railroad v. Weathersby, 63 Miss. 581; Railroad v. Thornton, 65 Miss. 256; Railroad v. Kea, 96 Miss. 195; Lowe v. Railroad, 81 Miss. 9; Railroad v. Kea, 198 Miss. 389; Railroad v. Gassoway, 111 Miss. 509.

There is no hard and fast rule of the common law requiring a signal to be given when a hand car or motor car approaches a highway crossing and, where no signal is given, the question of negligence or non-negligence in that regard is for the jury to determine under all the facts and circumstances of the case. McCerrin v. Railway, 72 Miss. 1013; Railroad v. Howerton, 115 Ky. 89, 72 S.W. 760, 103 Am. St. Rep. 295; Railroad v. Uremeister, 112 Ill.App. 346; Clinebell v. Railroad, 110 N.W. 347; 3 Elliott on Railroads, sec. 1179E.

Bramlette & Bramlette, for appellee.

Was the negligence of appellant in having no light nor in giving no signal the cause of appellee's injuries? This fact stands without contradiction in this record nor did appellant make any effort to combat it, again to quote Mr. Day:" . . . had they had any lights on the car or given a signal I would not have drove up there on the crossing." Nowhere in this record is there the slightest tendency toward a conflict as to this fact. Nor is it denied that after Mr. Day got on the crossing that what frightened his horse was this motor car coming on him in the dark, within less than thirty-three yards and without lights, which was enough to make any old family horse forget all of his gentleness and training and to think that all of the lions and tigers in Africa were about to spring on him.

Judge FLETCHER, for this court, in the case of Skipwith v. Railroad Company, 95 Miss. 50, said: "Travelers on the highway have a right to insist that these signals be given, not only that they may keep off the track, but that they may not drive their teams so near the track that fright will certainly follow."

Liability of a railroad company for negligence need not essentially be fixed by a statute, to quote Judge SYKES, for this court, in the case of I. C. R. R. Co. v. Dillon, 111 Miss. 520: "While the railroad company was under no statutory duty to sound alarms for this crossing at the same time it is our opinion that its common-law duty required the engineer to give signals of his approach to this much used crossing . . ." To illustrate further: This court in the cases of Fulmer v. I. C. R. R. Co., 68 Miss. 355, and A. & V. R. R. Co. v. Summer, 68 Miss. 566, held that it was negligence per se for a railroad company to make a flying switch across the street of a town along which persons are constantly accustomed to walk, prior to the adoption of section 3548 of the Code of 1892, and without reference to any statutory provision.

The facts in the case of V. & M. R. Co. v. Alexander, 62 Miss. 496, were that Dr. John Alexander wished to pass over a crossing with his horse and buggy, onto which a locomotive extended three and a half feet, and undertook to lead his horse across the railroad track, but when opposite the locomotive the horse became frightened and unmanageable and ran and broke the buggy. This court upheld a judgment in favor of Dr. Alexander for the breaking of his buggy and depreciation in the value of his horse, because the railroad was negligent in permitting its engine to project onto the crossing three and a half feet to quote Judge CAMPBELL:

"If the train had been three and a half feet further back so as to have cleared the crossing, the horse might have been frightened as it was, but there would have been no wrong by the appellant and no responsibility for the accident."

Appellant unnecessarily argues at length our prima-facie negligence statute. But a mere reading of appellee's declaration would demonstrate that this suit was not brought under that statute. However, the state of Mississippi, by that statute has declared gasoline to be a "dangerous agency" and draws a wide difference and distinction between a car or engine propelled by the dangerous agency of gasoline and a car propelled by hand.

We note this here because appellant insists on trying to convey the idea to the court by his authorities that this motor car was a hand car. We assume that the cases on which appellant mostly relies are those from which he quotes at length, namely the McCerrin case, 72 Miss. 1013, a hand car case, in which there was no evidence of negligence or even anything usual, to quote Judge CAMPBELL: "True, the averment as that these things were all well calculated to frighten very gentle horses, but as the defendant, by its servants, did nothing unusual, and nothing which common prudence would condemn as being calculated to frighten teams passing that way, it is not liable." That is all the court decided in that case, and that about a hand car of which we haven't the slightest criticism to make. The other case quoted at length by appellant is a Kentucky hand car case, where in the court positively stated: "There was not the slighest evidence introduced which tended to prove that the hand car was operated in an unusual way, or that it was making any unusual noise or sounds." Under which circumstances the court held, of course, that there was no liability.

This court has already decided that a railroad company can be guilty of negligence in the operation of a motor car even when such liability was not fixed by statute in the case of Armstrong v. G. & S. I. R. R. Co., 115 Miss. 698. Judge COOK said: that the danger to life and limb of plaintiff was reasonably apparent to any pruden person situated as he was, and, being confronted with this danger, he jumped to save his life." We think the evidence amply supported the theory of plaintiff, and this being true, the court erred in its instruction to the jury." The plaintiff was injured by jumping, but "the car passed through the switch safely, and had the plaintiff remained on the car, he would not have...