Alabama & V. Ry. Co. v. McGee

78 So. 296 | Miss. | 1918

HoldeN, J.,

delivered the opinion of the court.

Appellee, Dr. T. Q. McGee, recovered judgment for eight thousand dollars against the appellant railroad company for serious personal injuries received by Mm on account of appellant’s passenger train striking his buggy at night -while appellee was crossing over its track in it at a highway crossing near Hickory. The verdict of the jury'and the judgment of the lower court are based upon the proof that appellant’s train approached the public highway, crossing at a speed of forty miles per hour, and failed to ring the bell or blow the whistle, while using a very dim and defective headlight on its engine, all in violation of law, and that such negligent failure on the part of the appellant, through its engineer, contributed proximately to appel-lee’s injury. Appellee testified that he’knew the train was approaching when he went upon the crossing, but that on account of the dim, flickering headlight he was deceived as to the nearness or proximity of the train, as it looked to be about two miles away and he thought he would have ample time in which to cross over the track, and that even with the defective and deceptive headlight he would have not gone upon the crossing, or would have jumped from the buggy while on the crossing and saved himself, if the train had warned him by a blast of the whistle or by ringing the bell, neither of which was done by appellant, either as warning signals for the highway crossing, as required by law, or as warning after the engineer saw the appellee on the track, which was at a time when the engine was more than one hundred and fifty yards from the crossing.

The engineer in charge of the engine did not testify that the warning for the crossing required by law was given upon approaching the crossing. He said he was watching the fireman throw coal into the fire box at the time he was approaching the crossing; that the headlight and equipment of his engine and train were in good order, but that he could not stop his train in less than four hundred yards distance after seeing an object on the track; that he could not see an object on the track farther than two hundred and .fifty yards ahead of his engine, and that he saw appellee on the crossing one hundred and fifty yards ahead of his engine before he struck the buggy; and that he did all he could ■ to prevent the injury after he saw appellee on the crossing; but the engineer- does not say that he sounded any alarm or gave any warning by bell or whistle, either before or after he saw the buggy on the track. Appellee testified that no warning by bell or whistle was given at any time.

It is well to state here that when the appellee had got upon the track at the crossing, one of the traces of the buggy became loose, and he endeavored to take hold of the trace, and thereby pull the buggy on across the track and while momentarily delayed on the track in this effort with the trace, the engine struck the rear wheel of the buggy, knocking the buggy and appellee some distance and- causing the injury to appellee.

The appellant seeks a reversal mainly on the ground that the failure of appellant’s engineer to sound the warnings at the highway crossing and to provide “a ■ good and sufficient headlight” as required by sections 6669 and 6680, Hemingway’s Code, was not the proximate cause of the injury; that, on the contrary the appellee was not only guilty of contributory negligence in going upon the track, but that his negligence in going upon the track, when he could see, and knew, that the train was approaching together with the loosening of the trace, was the sole and proximate, cause of the injury; and that the appellant railroad company was guilty of no negligence whatever as its train’ was properly equipped and its'engineer did all 'that he could to prevent the injury after he saw the appellee’s buggy on the crossing. In support of this contention counsel for appellant urge that the failure of the engineer to give warning. signals upon approaching the crossing, and in using a dim and defective headlight, in violation of law, was not and could not have proximately caused the injury to appellee, for the reason that if appellant railroad company had been using “a good and sufficient headlight” at the time, and had sounded the whistle and rung the hell as the law requires, at highway crossings, still the injury would have occurred anyway, and would have been due solely to the conduct of appellee; and that the failure to sound the warnings, and have a proper headlight, did not contribute proximately, because the appellee could see and knew that the train was approaching when he went upon the crossing, and- that, as the bell and whistle alarms and “a good and sufficient headlight” are means used for warning persons of danger, they would have been of no value as notice or warning of danger here because the appellee already knew of the danger and needed no warning by bell or whistle, or otherwise, as such warning would be merely notice of what appellee already knew, that is, he knew that the train was approaching the crossing at the time he attempted to cross the track.

The principle announced above by counsel for appellant appears to be sound in both reason and logic, and is abundantly supported by good authority, and we are persuaded to say that the contention made by counsel for the appellant would be sustained by us if the facts in the case now before us were, such as to make the principle announced by counsel applicable, but we are unable to see how the rule can be applied in this case. To. illustrate: If the engineer in this case had been using a good electric headlight, as required by law, and the appellee saw the train approaching, and knew that it was in close proximity or realized its nearness, which he would have known and realized if the light had been good instead of dim and defective; and, knowing that the- train was approaching, he attempted to cross over the track at the highway crossing, when he could see the train closely coming; and the engineer did everything that he reasonably could to avoid injury after he saw appellee upon the track; and the appellee had been injured under these circumstances — we do not think that he could recover, even though the engineer had failed to ring the hell or sound the whistle for the crossing as required by the statute.

The plain reasoning of this is that if the injury had occurred under- the circumstances indicated, the failure to sound the whistle or to ring the bell, in violation of law, could not and did not proximately cause or contribute to the injury of the appellee, therefore there coúld be no recovery for the negligence of the railroad company in violating the statute because such negligence did not proximately cause, or contribute to, the injury received by the appellee. But the facts in the case before us are materially different from those in the above illustration, in this, that' here the dim and flickering headlight on the engine was such as to deceive the appellee with reference to the distance that the train was from the crossing at’ the time appellee attempted to cross over the track. It was not a good electric headlight which is alone a splendid warning of danger to persons going upon the track at any point, but it was a defective, dim light, which made it reasonably appear to the appellee that the train was not close, but was about two-miles away at the time he reached the crossing and went upon the track.

• We cannot say that, in view of the situation and conditions confronting appellee at the time, he did not act as any other reasonably prudent • person would have acted under the same circumstances; that is, if it seemed reasonably safe for him to cross over the track, since it 'appeared that the train was more than a mile away and that he would have plenty of time to cross over, it cannot be said, as a matter of law, that he was guilty of negligence in making the attempt to cross the track, but the most that could be said is that it was a question of fact for the determination of the jury as to whether he was guilty of contributory negligence. But, of course, contributory negligence would not defeat this action.

Now, when it is considered that on account of the defective headlight the close proximity of the train was not discernible to the appellee, then it will be seen that the sounding of the whistle -or the ringing of the bell by the engineer would have been valuable warning to appellee of the approaching train, and would have probably prevented the injury in this case. So, under the facts of this case, the failure of appellant’s engineer to sound the whistle or to ring the bell when approaching the highway crossing, as required by law, was negligence próximately contributing to the injury of the appellee. And while it is true, with reference to the. rule urged by counsel for appellant, that the appellee knew that the train was approaching, yet he had reasonable cause to believe that it was not so near to the crossing that it would strike him before he could cross over the track, and therefore warning of the danger by the whistle or bell would have given him notice of the danger which he did not realize, that is, it would have notified him audibly of the nearness of the approaching trhin which he did not realize visibly on account of the dim and defective headlight used on the engine. Therefore the failure of the engineer, servant of the appellant, to give warning by the signals, in connection with his failure to use a good headlight, as required by statute, was the proximate cause of the injury, and the appellee, at most, was only guilty of contributory negligence which goes to the diminishment of the damages in the case. The party seeking the benefit of the rule of diminishment must invoke it by requesting proper instructions from the court to the jury with reference thereto.

The appellant further contends that the lower court erred in not setting the verdict of the jury aside because it may have included damages to the buggy which was struck by the train, for the reason, as appellant contends, that as the appellee was guilty of contributory negligence his right to recover -for damages to the buggy is barred. In answer to this contention, it appears that the damages to the buggy were comparatively insignificant, but at all events the record does not show whether the jury decided that the appellee was, or was not, guilty of contributory negligence. Certainly the appellee as a matter of law was not guilty of contributory negligence in this case, but it was a question of fact properly submitted to the jury, and, for all we know, the' jury may have • determined by their verdict that appellee was not guilty of contributory negligence.

Furthermore, we hold that, while it is true that under our concurrent negligence statute (Hemingway’s Code, section 502), no recovery can be had for damages to property where the injured party is guilty of contributory negligence, as this statute means that contributory negligence shall not be a bar to recovery for personal injuries only, yet whenever it appears in a suit that there has been damages on account of personal injuries, and also damages on account of injuries to property, it is incumbent upon the defendant in. such case to request the court to exclude the testimony and instruct the jury that no recovery can be had by the plaintiff for damages to the personal property if the injured person was guilty of contributory negligence. A general motion to exclude all the evidence in the case made by the defendant cannot avail for this purpose, but the motion should specifically eliminate the item of damages on account of injury to the property. Therefore, we see no merit in the complaint of appellant regarding the question of damages to the buggy.

Taking this whole case from every viewpoint, we are thoroughly convinced that the question of negligence vel non was properly submitted to the jury in the lower court, and that the verdict rendered by the jury is amply sustained by the proof in the cáse. The fact that the engineer was not on the lookout hut was watching the fireman put coal into the fire box at the time this swiftly moving train was approaching the public highway crossing; and the further fact that the engineer knew that he could only see two hundred and fifty yards ahead of his engine, and that he qould not stop his train in a less distance than four hundred yards; and the fact that he saw the appellee on the track at the public crossing when the engine was one hundred and fifty yards away from the crossing, and failed to ring the bell or sound a single blast of the whistle as a warning of danger, which warning, would very probably have prevented the injury here — are facts in this case which were considered by the jury in connection with the other testimony with reference to the negligence of the appellant’s engineer in not having “a good and sufficient electric headlight” and in not sounding the whistle or ringing the bell in approaching the public crossing as required by law. And we think that the jury was fully justified in returning a verdict in favor of the plaintiff in the court below.

It is urged by the appellant that the verdict and judgment of eight thousand dollars is excessive, and that it should be reduced here or reversed for a new trial. Before it becomes our duty to reduce the amount of judgment recovered in the lower court on appeal here, it must first clearly appear that the amount recovered is, not only excessive, but grossly excessive. In the case before us, the testimony of the doctors and the other witnesses shows a serious and probably permanent injury to the appellee. We cannot say that the verdict is grossly excessive, and therefore we decline to disturb it.

The judgment of the lower court is affirmed.

Affirmed.