Gulf & Chicago Railroad v. Sneed

84 Miss. 252 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

Appellee, in company with her husband, driving on a public highway in a buggy drawn by a single horse, crossed the railroad track of appellant where it maintained a crossing over the highway. A short distance beyond the railroad track, which at this place traversed the highway on the crest of a small hill, the highway, in the direction in which appellee was traveling, turned to the right and ran down a declivity for an indefinitely stated distance, approximately parallel with and near to the railroad track. At the place of the injury complained of, some fifty-five feet from the point where the highway crossed the roadbed, but, on account of the curve in the highway, only a few feet from the roadbed, the highway ran near the foot of the railroad embankment, while on the other side there had been washed by the action of the water a gully, variously estimated as being from ten to twenty feet in depth. The story of the accident, as told in the language of Mr. Sneed, the husband of appellee, who was driving the buggy, is as follows : “I was driving along as usual, just driving off the railroad, and just in a few feet below my horse saw a bush lying in the road, and my mare scared at that and would not go on, and I undertook to make her go on, and she backed back and threw us in the gully.” Brom this accident appellee suffered several severe contusions, and for this brought suit, averring that the accident was caused by the negligence of the appellant in not complying with § 3555, Code 1892, and that this failure on the part of appellant was the proximate cause of the injury which she suffered. From a judgment in her favor the railroad company appeals.

Sec. 3555, so far as-pertains to this question, is as follows: “Where a railroad is constructed so as to cross a highway, and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highway so that the railroad may be conveniently crossed,' and to keep such crossing in good order.” The wording of this section explicitly states the duty imposed upon railroad companies crossing public highways in this state. That duty is as follows: In order that public travel may not be interfered with, nor the rights and privileges of the public in any wise curtailed, the railroad company is required to make such necessary and easy grades as will permit safe and convenient passage over its roadbed. The grade required depends, of course, upon the extent to which it has been found necessary to raise or lower the natural surface of the ground to make the crossing accord with the established grade of the railroad. Whether such grades are to be slight or great varies at each crossing with the natural obstacles which may be presented by the particular location. It is further the duty of the railroad company to see that the crossing is in such condition that the highway can be safely and conveniently used by the traveling public generally. This is the extent of the duty imposed upon railroad companies by the statute under review. The reason of the statute, the object which the legislature had in view, was evidently this: As railroad companies must necessarily, in constructing their lines, traverse numerous public highways, and as they have the power, in order to facilitate their operation, to arbitrarily establish such grade as the topography of the coimtry traversed by their railway may demand, and as this grade can be raised or lowered at the pleasure of the railroad company without consultation with the public or the road overseer, it was decided, and wisely so, that the railroad companies should themselves bear the burden of making such changes in the highway, where traversed, as might be found necessary, so that the rights of the public in the use of the highway, as such, should not be interfered with or infringed upon. Railroad companies are not required to construct or to maintain the public highways of the county, other than where interfered with by the construction of their roadbeds, and to perform the grading required for a convenient approach to such crossing. In the instant case, under the undisputed testimony in this record, appellee received her injury, not on the crossing, nor by reason of the condition of the crossing, nor on any grade constructed by appellant, but after the railroad had been safely passed and the buggy was again traveling over the public highway, the duty to maintain which is by statute placed upon the road overseer and hands, and under the supervision of the board of supervisors. For this reason the instructions for appellee were erroneous, in that they assumed as a matter of fact that the injury occurred upon that portion of the highway which it was the duty of the appellant to maintain in good order.

Nor, under the circumstances of this case, would appellee be entitled to recover, even though the accident had occurred on what might properly be considered as a part of the railroad crossing. The portion of the road at which the accident occurred was reasonably safe for the passage of the traveling public, and the exact spot had in fact already been passed in safety by appellee when the action of her horse, frightened by an object in the road, backed the buggy off the traveled road and into the gully, which was outside of the roadway. Under these circumstances the proximate cause of the injury was not the existence of the gully outside of the traveled roadway. The injury was directly contributed to by the action of the driver in undertaking, situate as he was, with an embankment on the one side of a narrow roadway and a deep gully on the other, to force an obviously frightened animal to pass over the object of her terror. Conceding that the railroad company was under the duty to maintain in good order the highway at the scene of the accident, it was not responsible for the object in the road, nor for the consequent fright of the animal, nor for the negligent act of the driver, and these were the proximate cause of the injury. Under these circumstances, no judgment in favor of appellee could rightfully be sustained.

Reversed and remanded.