56 So. 790 | Miss. | 1911
delivered the opinion of the court.
This is a suit by 'the appellant against appel Lee for personal injuries caused by the running of the cars. The plaintiff was injured in an effort to reach her seventeen months old baby, and to save, as she supposed, its life. The plaintiff’s home was situated a very short distance, between thirty-five and forty steps, from the railroad track. She was in her house, and came out on the gallery, and, missing her baby girl, saw her cm or near the
The engineer first testified, and he stated, in substance, that he and his fireman and one of the brakemen were on the engine and keeping a lookout. The brakeman was in the cab on the fireman’s side, and with the fireman. After having testified as to having given the signals as required by the statute for public crossings, he says as follows: “When I got up near the crossing (some four hundred or five hundred yards), I saw a little child on the east side of the track, and coming toward the track on the crossing, but had not reached the track when I saw it. I says: ‘0, Lord, God! There is a baby!’ and I threw the brake in the emergency and reversed the engine, and pulled the sand lever open, and did everything I could to stop the train.” In answer to the question, “What else could you do to stop the train?” his answer was, “Not a thing in the world.” And, further, “When I saw the child coming toward the track, I used every means to stop the train just as quick as I could use my hands. I done it in a second.” He and the other employees testified that the engine and train were properly equipped with air brakes, was in good working order,
The evidence showed that those in charge of the train were competent and skillful men, and understood their business. There was not a particle of evidence in the record that either directly or indirectly, or in any way, contradicted the evidence on behalf of the defendant. Mrs. Billingsley testified that, when she first saw the child on the track, she also at the same time saw the train, and that the train was some four or five telegraph poles distant from the crossing where the child was; and the evidence discloses that the distance between the telegraph posts is about one hundred yards. After all the evidence was in, the court gave a peremptory instruction to find for the defendant. The case is here on that one proposition.
There being conflict in the testimony as to whether tlie statutory signals required to be given at public crossings were given, we must resolve this question in favor of the plaintiff, and must assume that the signals were not given. It may be said that proof of injury by the
In order for liability to be fastened upon the defendant, it is necessary that its negligence should be the proximate cause of the injury. Let it be borne in mind that the party injured and the party suing is the mother, and not the child. Prom all the. facts in evidence — and let it be understood that all the facts and all the circumstances in any way relating to the injury were testified to by the witnesses for both the plaintiff and the defendant — it is manifest that negligence upon the part of the defendant did not cause the injury. What is or what is not the proximate cause of an injury seems to be incapable of any strict definition which will suit every case. Proximate cause is said to be a “vexed metaphysical question;” but it can be safely said that, in-order to constitute a proximate cause, there must be causal connection between the injury and the negligence complained of.
While the defendant was negligent in failing- to give the signals for the crossing as required by law, the plaintiff cannot complain, because she saw the train long before it reached the crossing, and there was no causal connection between the failure to give the signal and the plaintiff’s injury. The purpose and object of requiring these crossing signals to be given is to warn persons who are about to cross the track, or those whose teams are so near the crossing as, reasonably and naturally, may be expected to become frightened by the train, and thus give the parties an opportunity to get the team away from the track. Such was the conclusion of this court in Skipwith v. R. R. Co., 95 Miss. 50, 48 South. 964, relied on by appellant. It is urged with great ability and ingenuity that, if these signals had been given.
The mother in g'oing upon the railroad track at the time and under the circumstances, in order to rescue her child from impending danger, was surely not guilty of any contributory negligence. We base our conclusion solely upon the proposition that the proximate cause of the injury was not the negligence of the defendant.
In the Fuller case, this day delivered, we hold that the simple proof of injury by the running of the cars is prima facie evidence of liability; but we further say that presumptions in all cases must yield to the facts, that, when all the facts relating to the injury are in evidence and there is no conflict, the court has a right to draw a conclusion-based upon the facts, and in proper cases to give a peremptory instruction as these facts may justify. We further say in.that case that positive, direct evidence as to the time when parties are seen upon the track and as to the skill and diligence used thereafter to avoid the injury is not indispensable; that these facts may be proved by circumstances, and are inferences to be drawn by the court or jury in applying their common observation and experience. We so hold in this opinion.
The facts relating to the cause of the injury completely exonerate the defendant, and, if a verdict had been returned by the jury upon the proven facts, we would not permit the verdict to stand. If credence is to be given to human testimony, it must abide with the testimony of