87 Miss. 789 | Miss. | 1905
delivered the opinion of the court.
Appellant, as the sister -and only heir of Bozeman Westmoreland, brought this action against the railroad company for damages for his death, alleged to have been caused by the negligence of said company. The track runs north and south. A sidetrack, parallel with the main line, was, at the place of the accident, located very close to it; so that when one crossed the sidetrack he was right on the main line. This sidetrack at the time of the accident was filled with freight cars; so that, at the place of the crossing, there was no view whatever of the main line, north or south. In order to cross as the deceased did, driving his two-horse wagon, he had to pass through an opening left for that pur
It will be seen that, inasmuch as the court gave a peremptory instruction to find for the defendant, the only question in this case on the facts is whether, as a matter of law, the action of the
In Wooten v. Railroad Co., 79 Miss., 36 (29 South. Rep., 61),
In Railroad, etc., Co. v. Brooks, 85 Miss., 269 (38 South. Rep., 40), this court said, through Judge Truly: “There is yet another principle of law, well settled in this state, which required the submission of the case to the jury. It was shown beyond per ad venture that the injury was inflicted by the running of the train. This was prima facie proof of negligence, authorizing a recovery by plaintiff. To overcome this statutory presumption, it devolved upon the appellant to exculpate itself by establishing, to the satisfaction of the jury, such circumstances of excuse as would relieve it from liability. But this statutory presumption cannot be overthrown by conjecture.” In the case of Louisville, etc., R. R. Co. v. Crominarity, 38 South. Rep., 634, the court, through Judge Truly, said: “The proposition presented by the appellant, upon which hangs its chief argument, seeking to have the conduct of appellee condemned as being such contributory negligence as should absolutely preclude any recovery, is that the appellee, in approaching the crossing where the injury occurred, did not bring his horse to an absolute halt before driving onto the track. ' Hany decisions and a multitude of authorities are cited to show that other courts have held that the mere failure to stop before driving onto a railroad crossing constitutes, as a matter of law, such negligence as forbids recovery for any injury inflicted by a passing train. We decline to adopt any such rigid rule. What constitutes negligence must depend always upon the surrounding conditions and the attendant circumstances of the particular instance. No* hard-and-fast rule of action can be prescribed which will make the same course of conduct under any and all circumstances either wise or unwise, cautious* or reckless. Instances may be imagined when to stop before driving onto a track would be hazardous in the extreme; in other cases driving upon a railroad track without stopping would be in
From the foregoing references it is to be deduced that, under circumstances like those in this case, the court should have left it to the jury, under proper instructions, to say whether there was or was not such negligence as to defeat recovery. Laws are made for men as thev are. and it is the jury which should determine whether the acts were or were not reasonably prudent. The leaving of the freight cars only sixteen feet apart for the passage of vehicles over the main track, and the stacking up of freight cars and the knowledge of their obstructing the view, and the failure to ring the bell or blow the whistle as the law requires-, were acts, in combination, of the grossest negligence, particularly-where the crossing is the main thoroughfare of a town. Whether or not a reasonably prudent man — having, almost immediately before he went between the freight cars, seen that the track was clear for three hundred yards — would have done as the deceased did, is a matter for the judgment of the jury, and not of the court. In Bell v. Southern Ry. Co., 80 South. Rep., 821, Ante
Reversed and remanded.