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

• Decision Date: 03 January 1925
• Docket Number: 24405
• Citation: 102 So. 393,137 Miss. 572
• Parties: YAZOO & M. V. R. Co. v. LUCKEN. [*]
• Court: Mississippi Supreme Court

102 So. 393

137 Miss. 572

YAZOO & M. V. R. Co. v. LUCKEN. ^[*]

No. 24405

Supreme Court of Mississippi

January 3, 1925

Division B

Suggestion of Error overruled Feb. 9, 1925.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by Mrs. Grace Lucken against the Yazoo & Mississippi Valley Railroad Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Burch, Minor & McKay and Hirsh, Dent & Landau, for appellant.

I. Appellant entitled to direct verdict in court below. Railroad Co. v. McCoy, 105 Miss. 738. Hubbard's statement that he looked and saw no train, listened and heard no whistle blown or bell rung before crossing railroad track of no probative value and creates no material conflict in the evidence which required the submission of the issue to the jury. Peters v. Southern Ry. Co., 33 So. 332; Artz v. Railroad Co., 34 Ia. 154; McCarthy v. R. R. Co., 1915-B L. R. A. 140; M. &amp O. R. R. Co. v. Bennett, 127 Miss. 413; Jackson v. Railroad Co., 89 Miss. 35. The absence of signals, if such were the fact, is not proximate cause of Lucken's death. Gross negligence of Hubbard, the driver of the car, sole cause of Lucken's death, if evidence of two negro boys in car with Hubbard is true. Y. & M. V. R. R. Co. v. Cox, 132 Miss. 570.

II. Crossing not a part of a public or dedicated highway. Charge in plaintiff's declaration that crossing was a part of a dedicated highway not sustained. Plaintiff's evidence, indeed all of the evidence, discloses that the crossing was not a part of a dedicated public highway so as to require that statutory signals be given in approaching the crossing in compliance with section 4045, Code of 1906, section 6669, Hemingway's Code. Sanford v. Meridian, 52 Miss. 383. It will thus be seen from the evidence of both the plaintiff and the defendant that there is nothing in this record to disclose that the crossing in question was a part of a dedicated public highway, so as to come under the purview of section 4045, Code of 1906, section 6669, Hemingway's Code. Volume 2, section 7074, Hemingway's Code. Jurisdictional facts must appear of record in order to constitute a public road. Craft v. DeSoto County, 79 Miss. 618; Sullivan v. LaFayette County, 58 Miss. 618; Willis v. Reed, 86 Miss. 446; Burnley v. Mullins, 86 Miss. 440; I. C. R. R. Co. v. Dillon, 111 Miss. 520; Adkinson v. G. & S. I. R. R. Co., 117 Miss. 131; Warren County v. Mastronardi, 76 Miss. 273, 24 So. 199; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446, 38 So. 793.

III. Lucken guilty of negligence. The court erroneously declined to so instruct or to submit the question of his negligence to the jury. Railroad Co. v. McLeod, 78 Miss. 341; Noble v. Railroad Co., 298 F. 381. Instruction No. 4 given plaintiff, erroneous, contravenes contributory negligence statute, and advised jury that they might award full amount sued for not exceeding fifty thousand dollars. Gulfport & Miss. Coast Traction Co. v. Keebler, 130 Miss. 631; A. & V. Ry. Co. v. Dennis, 128 Miss. 299; Lumber Co. v. Jacobs, 132 Miss. 652; Tensall v. Davis, 129 Miss. 30; Bonelli v. Branciere, 127 Miss. 556. This instruction does not confine the defendant's negligence to such negligence as contributed in whole or in part to the injury complained of. If defendant was negligent, how, in what respect, and what was its connection to the injury sustained by the decedent? In order to fix liability, the negligence charged must have been proven and the negligence proven must have been the proximate cause of the injury. Clesby v. Railroad Co., 78 Miss. 937; Billingsley v. Railroad Co., 100 Miss. 612; A. & V. Ry. Co. v. McCoy, 105 Miss. 738.

IV. Court erred in excluding evidence of fireman and engineer as to what, if anything, they could have done that they did not do in order to keep locomotive from striking automobile. Billingsley v. Railroad Co., supra.

V. Verdict should be set aside, it is against the great preponderance of the evidence. M. & O. R. R. Co. v. Bennett, 127 Miss. 413, 90 So. 113; Garvin v. Lowry, 7 S. & M. 24; Simmons v. Means, 8 S. & M. 400; Dodson v. State, 67 Miss. 331; Flora v. Express Co., 92 Miss. 69; Clark v. Moyse, 48 So. 721; McFadden v. Buckley, 53 So. 351; Fore v. Railroad Co., 87 Miss. 218; McQueen v. Bostick, 12 S. & M. 604; Sims v. McIntyre, 8 S. & M. 327; Buckingham v. Walker, 48 Miss. 630; Hood v. Barnes, 72 So. 930; Barbee v. Reese, 60 Miss. 906.

VI. Verdict grossly excessive. L. & N. R. R. Co. v. Garnett, 93 So. 241; New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104; Hines v. Green, 125 Miss. 476, 87 So. 649.

Anderson, Vollor & Kelly and A. A. Chaney, for appellee.

When the appellant contends that the crossing in question is not a public one, it necessarily puts itself in the position of contending that no one has a right to call for or to ship freight or to become a passenger at the Valley Park station. If the station and station grounds are public places, necessarily the station crossing is a public place, the crossing being the only one in the town and the only one leading to the station and station grounds. A public highway is one that the public uses and has a right to use. There is no denial that the public has used the highway and crossing in question continuously and without interruption for a period of more than twenty years. Courts of last resort are uniform in holding that an unexplained user of land as a highway, by the public, for the prescriptive period would be presumed to be under a claim of right, and that, where the evidence, without contradiction, clearly shows continued and uninterrupted use by the public of the highway for the prescriptive period, the highway will be presumed to be a public thoroughfare. Phillips v. Leininger, 280 Ill. 132, 117 N.E. 497; Southern Ind. R. R. Co. v. Norman, 165 Ind. 126, 74 N.E. 896; Hanson v. Taylor, 23 Wis. 547; Dimon v. People, 17 Ill. 416; State v. Teeters, 97 Ia. 458, 66 N.W. 754. Record evidence of the establishment or recognition by the public authorities of the way as a public highway or road is not necessary. State v. Quincy, etc., R. R. Co., 150 Mo. 556, 131 S.W. 161; Raht v. Southern R. R. Co., 50 S.W. 72; Brigham City v. Crawford, 20 Utah 130, 57 P. 842; Eyman v. People, 6 Ill. 4. Where the use of the passway has extended over a long period of years, very slight evidence will be sufficient to show that it was enjoyed under a claim of right; and when a proprietor undertakes to close a passway the burden is on him to show that the use was merely permissive, and to explain away the presumption that its uninterrupted enjoyment for more than fifteen years was not exercised under a claim of right. The mere fact that the owner of the servient estate never gave, and the person using the passway never asked, permission is not in itself sufficient to overcome the presumption in their favor arising from the long-continued use of the way. Smith v. Pennington, 122 Ky. 355; Patton v. Forgey, 153 S.W. 375; Carter v. Walker, 65 So. 170; Boonville Special Road District v. Fuser, 171 S.W. 963; Rose Judge v. Kolen, 179 S.W. 229; 9 R. C. L. 32; 13 R. C. L. 23; Rudd v. Casualty & Indemnity Co., 1912-C Ann. Cas. 606; Godfrey Hamp v. Pend Oreille County, 1918-E L. R. A. 400; Card v. Cunningham, 74 So. 336; Lewman v. Andrews, 129 Ala. 174; Manderschid v. Dubeoue, 29 Ia. 73; Whitesides v. Green, 13 Utah 341, 44 P. 1932; State v. Wilkerson, 2 Vt. 480; Marion v. Skillman, 127 Ind. 130; Boyce v. Kalbaugh, 47 Md. 334; Stuyvesant v. Woodruff, 21 N. J. 133; Reed v. Northfield, 13 Mass. 94, 23 Am. Dec. 662; Ryle v. State, 63 So. 342, 106 Miss. 123.

The defendant company by the erection and maintenance of the railroad crossing sign boards and by inviting the public to use the crossing for its benefit for a long number of years, recognized the crossing as a public crossing, and could not now be heard to say that under the provisions of section 6669, Hemingway's Code, that the crossing is a private one. Upon a thorough investigation, it is found no court in the union has held to the contrary. Ariz. Copper Co. Ltd. v. Garcia, 214 P. 317; St. Louis I. & M. S. Ry. Co. v. O'Connor, 142 P. 1111; Midland Valley R. R. Co. v. A. J. Shores, 136 P. 157; Russell v. Atchison, T. & S. F. R. R. Co., 70 Mo.App. 88; Atkinson v. Fountain, 10 Ga. 307; Keith v. Inter-colonial Coal Mining Co., 18 N. S. 226; R. R. Company v. Bryant, 204 S.W. 443 (Tex.). A statute requiring signals "where the railroad crosses any public street or highway" applies to any street or road actually used by the public generally as and for a street, -- used so generally and so long as to be fairly denominated and considered a highway--no matter that no record of its adoption by the county court or council can be produced. Ray v. C. & O. R. R. Co., 57 W.Va. 333; Schoonover v. B. & O. R. R. Co., 69 W.Va. 566; Markham v. Houston & T. C. R. R. Co., 1 Tex.App. Civ. Cas. (White & W.) 35; St. L., I. M. & S. R. R. Co. v. Tomilson, 78 Ark. 251; Southern R. R. Co. v. Combs, 124 Ga. 1004; Cleveland C. C. & St. L. R. R. Co. v. Baker, 106 Ill. 500; Hartman v. Chicago C. W. R. R. Co., 132 Ia. 582, 110 N.W. 10; L. & N. R. R. Co. v. Bodine, 109 Ky. ; Johnson v. Boston & M. R. R. Co., 153 Mass. 57; Gurley v. M. P. R. R. Co., 122 Mo. 141; Meitzner v. B. & O. R. R. Co., 224 Pa. 352; Kirby v. Southern R. R. Co., 63 S.C. 494; Railroad Co. v. Abee, 98 S.E. 31; Railroad Co. v. Bullington, 116 S.E. 267; Railroad Co. v. Watson, 82 Miss. 89.

The case was tried in lower court on theory that crossing was a public one. Not a question asked by defendant seeking to show crossing private and not a witness introduced to make this proof. The first reference to the crossing made by defendant in motion for new...