Anderson v. Alabama & Vicksburg Railroad

81 Miss. 587 | Miss. | 1902

Calhoon, J.,

delivered the opinion of the court.

This is- an action on an account, not dated, but filed October 18, 1900, against the railway company, “by reason of the closing of the public road across the railroad, $200,” on which the justice of the peace gave the plaintiff, Anderson, judgment by default for $200, but on appeal there were verdict and judgment for defendant. There is no evidence in the record that the road obstructed was a highway. The plaintiff certainly has no just cause of complaint of the action of the court on the instructions. He, for himself, testified that he was in failing health, and had been under treatment of Dr. Cook about a week before, and that he was on horseback, and wanting to cross the railroad track at Newman’s Grove on his way home, and that just as he reached the crossing a freight train covered it, and stopped and uncoupled, leaving the road obstructed, and a section of it went back to pull some cars it had left behind up to that section of the train which was left, and that he was detained there from three-quarters of an hour to an hour before the obstruction was removed; that he rode down to one end of the ears, where he thought he could cross, but was prevented by a wire fence ; that, when he crossed, he found his wagon on the opposite side, gave his boy his horse, and went, home in the wagon, his home being from three to three and one-half miles from the crossing; that he got into the wagon at 9 o’clock, and got home about 12 o’clock, and just before he got home he had a chill, and a hard rain, coming up, wet him; that he was senseless until the next morning, and was ‘ ‘ about dead, too and that his illness continued about two months, with pains in- his side and breast, being-treated by Dr. Cook. ' He says he did not go to another road, where he could have crossed, because he could not have gone through the weeds, and that because of his illness he lost about three bales of cotton. H.e says he was a little sick, before the detention at the crossing, and was not feeling well when he got there, and that he took from 9 until 12 o’clock to go to his. home, three or three and one-half miles distant, and was drawn by mules, and that he had nothing in the wagon, and that the rain came up when he was about a mile from home. His son testified for him that he took him to his home in the wagon ;. that when he got to the crossing with the wagon, and on the opposite side from his father, the train was uncoupled, and a part of it over the crossing, and the engine uncoupled from it and went back east; that the engine came back with part of the' train, and coupled up with the obstructing cars, and went on to Vicksburg ; that his father was pretty sick all that night, and that he did not see him until the train pulled out; that it was four miles from the crossing to his home, and that they got home about 9 or 10 o’clock, having left the crossing about 7 o’clock with good mules, which, however, walked all the way. Dr. Cook testified for plaintiff that he was his physician, but had not done any practicing for him for about two years. He said the plaintiff came to him after the .trouble at the crossing, and had a bad cough and severe pain in the chest— his diagnosis being that he had neuralgia — and this was in the fall of 1900. For the defendant, one Henington testified that he was there at the crossing when the train got to Newman’s, and that the plaintiff came up afterwards; that he came up when the engine' came back with the other part of the train, and that he led his horse to the end of the car, and could have passed it; that he was not detained more than five or six minutes, but told the witness, after he went to the end of the car and came back, that he intended to wait and sue the railroad. This witness explains that there is a steep grade coming up to Newman’s, and therefore it was necessary to break the train and pull it up in sections ; that plaintiff was detained a very short time — not over five or six minutes. Lem Henington, for defendant, testified that plaintiff came up to the crossing on horseback just before the second section was pulled up, and was .detained not exceeding five minutes, and that plaintiff asked him if he would be a witness, and if he could not prosecute the railroad company. Another witness, named Henington, corroborated the other two, and swears that the detention, as witness thought, was not exceeding five minutes, and is satisfied that it could not have been as much as six minutes, and that the plaintiff spoke to him about getting witnesses, and got his name.

Of course, there is no doubt, under the rulings of our court, that a plaintiff may recover damages, under some circumstances, arising out of detention at a highway, where his health suffers from that cause, and the detention was beyond the legal limit allowed to railroad companies. It is none the less the law that such recovery cannot be had unless the detention exceeds five minutes, under § 3551 of the code, and, in the case at bar, only if the damage to health was caused by the delay. Here the whole case was left to the jury, the evidence was conflicting, and the verdict should not be disturbed.

Affirmed.