87 So. 1 | Miss. | 1920
delivered the opinion of the court.
This suit was brought in the circuit court by the appellee, Martha Moore, who sued for herself as mother and for two minor children of hers, as sisters, of Judge Moore, Jr., a negro boy eight years old, who ivas killed by a train of the New Orleans & North Eastern Railroad Company on Forty-Ninth avenue, a part of which avenue is within the corporate limits of the city of Meridian, and a part being without the corporate limits. The deceased was riding with his father in a Ford automobile, and while attempting to cross the railroad tracks the automobile was struck by a passenger train of the New Orleans- & North Eastern Railroad Company, as it was coming into the city of Meridian, and the two occupants of the! automobile were killed. The court peremptorily instructed the jury to return a verdict in favor of the plaintiffs. The jury was also instructed by the' court that the deceased was incapable of being guilty of contributory negligence. At the instance of the plaintiffs the following instruction on the measure of damages was given.
“The court instructs the jury for the plaintiffs that if the jury find for the plaintiffs, they should find a lump sum which the jury may believe from the evidence will be a reasonable compensation for the life expectancy of Judge Moore, Jr., and in addition thereto 'will be a reasonable compensation for the value of any service Avhich the jury may believe from the evidence, if any, that Judge Moore, Jr., Avouhl have rendered to his mother before he reached the age of twenty-one years.”
The jury returned-a verdict in favor of the plaintiffs for seven thousand five hundred dollars, upon Avhich the circuit court entered judgment to conform Aiith the verdict, and the defendant in the lower court prosecutes this appeal.
The three principal grounds upon Avhich we are asked to reverse this judgment are:
*513 First. That the court erred in instructing the jury peremptorily to return a verdict for the plaintiffs.
Second. That the court erred in deciding as a matter of law that the deceased was not guilty of contributory negligence.
Third. That instruction No. 3 on the measure of damages is erroneous.
The uncontradicted testimony in the case is to the effect : That the deceased, a negro boy eight years old, was riding in a Ford automobile with his father going home. That there is a store and perhaps other objects which obstructed the view of the driver of the automobile until he came upon the railroad right of way. This right of way is one hundred feet wide, and there are six railroad tracks crossing Forty-Ninth avenue at this place. The incoming train was on the fifth track from the side from which the automobile came. That the driver of the automobile had an unobstructed view of the track for about one thousand yards after he came upon the right of way. The automobile crossed the four intervening tracks before it was hit by the incoming train. The automobile did not stop or slacken its speed after entering upon the railroad right of way. The engineer and fireman on the train were both upon the lookout as the train approached the crossing. The automobile came from the left, or the fireman’s, side of the train. The fireman testified, and his testimony is uncontradicted upon this point, that he first saw the automobile as it reached .the second railroad track, whereupon he immediately notified the engineer, and the engineer applied the emergency brake and did everything, he could to stop the train. At the time the fireman saw the automobile he thinks the engine was about fifty feet from the crossing, and the automobile was about the same distance from this track. The deceased sustained fatal injuries from which he died in a few hours without having regained consciousness. Forty-Ninth avenue is a frequently used street crossing. The corporate line of the city of Meridian runs about midway down this avenue. The
The plaintiffs’ testimony was to the effect that the prop - er signals were not given for this crossing. The defendant’s testimony is that they were. The plaintiff’s testimony is that the train was running at a very high rate of speed, some witnesses testifying to a speed of thirty to thirty-five miles an hour, the defendant’s testimony is to the effect that the train was running from ten to fifteen miles an hour. The testimony is conflicting as to the speed of the automobile; the plaintiffs’ witnesses putting this speed as low as five or six miles an hour, while the defendant’s witnesses estimate it at ten or fifteen. The testimony is conflicting as to the number of feet run by the train after striking the automobile. The plaintiffs’ witnesses testify that the train was seven hundred or eight hundred feet, and the defendant’s witnesses testify that it rail three hundred twenty feet. The plaintiffs’ witnesses testify that the automobile ivas struck within the corporate limits of the city of Meridian, Avhile at least one witness for the defendant testified that the accident occurred outside of the corporate limits. There are contradictions in the record also as to the number of feet in which this train could have been stopped running at 'Various rates of speed. The engineer testified that he Avas on the lookout, but his view of the left-hand side of the crossing Avas obstructed by the boiler of the engine; consequently that he Avas unable to see the automobile, and was not aAvare of its approach until notified by the fireman. The automobile had traveled in the neighborhood of fifteen or twenty feet upon the right of Avay before it was seen by the fireman. If the speed of the automobile Avas ten or fifteen miles an hour, as testified to by the defendant’s Avitness, it Avas seen by the fireman a very few seconds after it came Avithin his vision.
Under this testimony the automobile Avas struck outside of the corporate limits of the city of Meredian. It was not negligence per se to approach the corporate limits at a rate of speed of fifteen miles an hour. Section 4043,. Code of 1906 (section 6667, Hemingway’s Code), which makes a railroad company liable for damages or injury sustained by any one from locomotives or cars Avhile they are running at a greater rate of speed than six miles per hour through a toAvn or village, only applies to accidents which occur within the corporate limits of the city, and the fact that the speed at which a train was running outside of the corporate limits of a municipality shows that this speed could not .have been reduced to six miles an hour when the train entered the municipality would not
It was the duty of the engineer and fireman to use reasonable care and diligence in. maintaining a lookout for people using Forty-Ninth avenue crossing., and whether or not they exercised this care and diligence under the circumstances, and whether the fireman discovered the approaching automobile and appreciated the impending danger as soon as he should have done so by the exercise of reasonable card, and diligencé, and exercised this diligence in notifying the engineer, Avere all questions of fact to be decided by the jury, and not of law for the court. If the jury believed that the servants of the railroad company were negligent either in running the train at an excessive rate of speed or in failing to maintain a proper lookout, or both, the further question was for them to decide whether or not this negligence Avas the proximate or one of the contributing causes of the accident. Railroad Co. v. Williams, 114 Miss. 236, 74 So. 835; Railroad Co. v. McGee, 117 Miss. 370, 78 So. 296; Railroad Co. v. Dillon et al., 111 Miss. 520, 71 So. 809; Power Co. v. McEachern, 109 Miss. 380, 69 So. 185. We, therefore, conclude that the court erred in instructing the jury peremptorily to return a verdict in favor of the plaintiffs.
2. The testimony of the mother was to the effect that this child' rendered the ordinary services to its parents that a child of eight years old does. There was no testimony that the child was especially precocious for its age. A child of this age is prima-facie incapable of exercising judgment and discretion. This presumption, however, may be rebutted by testimony. The testimony in this case as' a matter of laAV is insufficient to rebut the presumption, and the court was correct in instructing the jury that the deceased was not guilty of contributory negligence. Westbrook v. Railroad Co., 66 Miss. 560, 6 So. 321, 14 Am. St. Rep. 587; City of Vicksburg v. McLain, 67 Miss. 4, 6
3. The third instruction given the plaintiffs is inaccurately drawn. The expectancy of life is calculated from the time of the death of the deceased, and not from the time when he ivould have become of age. 8 A. & E. Ency. of Law, 949. By the first part of this instruction the jury are instructed to return a lump sum for this life expectancy. Broadly speaking, this Avould cover the years of his minority. Parents are entitled to the services of their children during minority, and in this case the mother would be entitled to recover reasonable compensation for the value of the deceased’s services during minority. This minority service was really covered by the first part of the insti-uction. The second part expressly authorizes a recovery for this in addition to the entire life expectancy. New Deemer Mfg. Co. v. Alexander, 85 So. 104.
Reversed and remanded.