Yazoo & Mississippi Valley Railroad Company v. Watson

• Decision Date: 24 March 1903
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. LEONIDAS WATSON
• Court: Mississippi Supreme Court

33 So. 942

82 Miss. 89

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. LEONIDAS WATSON

Supreme Court of Mississippi

March 24, 1903

March 1903

FROM the chancery court of Yazoo county. HON. ROBERT POWELL Judge.

Watson appellee, was plaintiff, and the railroad company, appellant was defendant in the court below. From a judgment in plaintiff's favor, defendant appealed to the supreme court. The opinion states the facts.

Affirmed.

Mayes & Harris and J. M. Dickinson, for appellant.

It is well settled that unless the railroad company was under some duty or obligation to the plaintiff in this case, and had violated that duty to him, it would not be liable in this case for the injury which he sustained.

There is no evidence whatever in the case that the road on which plaintiff was injured was a public highway, and the fact that it was a private crossing is made out clearly by the plaintiff's own witnesses. It is true that they testified that other people than the landowner used the crossing, and the road, but that fact would not make it a public highway.

The fact that a road is a private road, a private neighborhood or plantation way, used by those persons who desire to use it, without objection on the part of the landowner, does not make ira highway within the meaning of the statute which requires railroads to construct bridges, maintaining crossings, etc., at public highways. It does not bring the case within code 1892, § 3555, and it must be Brought squarely within that section before the plaintiff in this case would be entitled to recover.

It is true that it is not necessary that the public authorities should have accepted the highway. Harrison County v. Seal, 66 Miss. 129. "But there must be some manifestation by unequivocal acts of the owner to devote a road on his premises to the use of the public." Kinnare v. Gregory, 55 Miss. 612.

Being a private way, the railroad company was under no duty to the plaintiff to maintain the crossing, or to keep it in any sort of condition for his use.

There is no proof in the record that the railroad company was under any obligation to any one in regard to this crossing. There is no proof that the owner of the land had made any objection, and, being a private way over his land, and he was content with the condition it was in, neither the public nor the plaintiff had any right to complain of its condition.

But if we should concede that there was evidence in the case tending to show that this was a public highway--if we concede that it was a public highway--the evidence in the case is overwhelming that the plaintiff's injury was caused by his own rash conduct in attempting to use the driveway as he did. The evidence of all the witnesses is that it was a very dangerous crossing. It was obviously dangerous. There were no hidden defects. The plaintiff himself testified over and over again that it was broad daylight, and he could see everything perfectly distinctly. There was nothing hidden.

Henry & Barbour, for appellee.

The statute is plain (code 1892, § 3555) in imposing upon railroads the duty to make proper and easy grades where its road crosses highways, and imposes a penalty of $ 100 for the failure to do so. Of course, it is well settled that the imposition of the penalty does not exclude the right of recovery of actual damages for the failure to perform this statutory duty. Aside from the duty imposed by the statute, it is a common law duty.

We take the position, and we are supported by authority, that it was not necessary for the road in question to have been even a public road, but that, if it was used by the people in the neighborhood, and especially, as the record shows, by anybody and everybody who wanted to use it, and the defendant having recognized...