| Miss. | Mar 15, 1918
delivered the opinion of the court.
This is,an appeal from a judgment against appellant for damages alleged to have been sustained by appellee because of being struck by one of appellant’s trains. On the occasion in question appellee was traveling in an automobile upon a road which crosses appellant’s track. When he arrived at the crossing he drove upon the track without either, stopping, looking, or listening, or attempting in any other way, if such there be, to ascertain whether or not a train was approaching; his reasons therefor being that no train was due to be there then. He lost control of his car, and it stopped on the track, and before he could get out of the way he was struck and injured by one of the appellant’s trains which approached the crossing without the whistle being blown or the bell being rung, as provided by section 4045, Code of 1906. The only evidence that the road had been dedicated to, or that the right to the use thereof had been acquired by the public, was that many years ago it was the route of a telegraph line, and was cut out and used for the purpose of erecting and keeping the line in repair, had for many years been used by the public generally, and that several years previous to the time of the accident it had been worked by the public road hands. At one time a signboard was maintained by appellant at the crossing, on which appeared the words, “Look out for the locomotive.” This sign, however, was allowed to rot down and fall some years since, and had not been renewed. The grade at the crossing was slight, and vehicles could easily cross the track, but there were no special facilities provided for aiding them to do so. One of the witnesses stated that he had seen railroad employees working on the track at the crossing and putting in tiling.
A highway is a road or way upon which all persons have the right to travel at pleasure. It is the right of all persons to travel upon a road, and not merely their traveling upon it, that makes it a public road or highway. This right may be acquired in various ways, one of which is by prescription; but in order for it to be so acquired, the ■ road must be habitually used by the public in general for a period of ten years; and such user must be accompanied by evidence, other than mere travel thereon, of a claim hy the public of the right so to do. The only evidence of such claim here is that the road was formerly worked by the public-road hands of that vicinity, but when, for how long a period, and by what authority, does not appear, so that- it is of no value. For aught that appears to the contrary, the travel over the road is by the sufferance or permission of the owners of the land over which it passes. Warren County v. Mastronardi, 76 Miss. 273" court="Miss." date_filed="1898-11-15" href="https://app.midpage.ai/document/warren-county-v-mastronardi-7988181?utm_source=webapp" opinion_id="7988181">76 Miss. 273, 24 So. 199; Burnley v. Mullins, 86 Miss. 441" court="Miss." date_filed="1905-04-15" href="https://app.midpage.ai/document/burnley-v-mullins-7989387?utm_source=webapp" opinion_id="7989387">86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446" court="Miss." date_filed="1905-04-15" href="https://app.midpage.ai/document/wills-v-reed-7989388?utm_source=webapp" opinion_id="7989388">86 Miss. 446, 38 So. 793. The instruction therefore should not have been given.
Another assignment of error is that the court erred in not granting appellant an instruction which, in effect, peremptorily charged the jury that appellee was guilty' of gross negligence in going upon the track without stopping, looking, or listening. The instruction should have been given, for in order to have ascertained whether or not a train was approaching, it was absolutely necessary for appellant to have either looked or listened therefor, so that by doing neither he failed to exercise any care whatever for his own safety. Ordinarily, where the injured person’s negligence con
Reversed and remanded.