The plaintiff in error (defendant in the District Court) was sued by the defendant in error (plaintiff in that court), for damages caused by injuries received by him in a collision between an automobile, in which he was riding as a guest, and defendant’s passenger train at a road crossing. But one question is presented, and it is based upon the refusal of the District Court to direct a verdict in favor of the defendant. Such a direction would have been justified only in the event the defendant was guilty of no negligence, which caused the collision. The contributory negligence of the plaintiff, if it existed, would not have had that result in Mississippi. The only negligence relied upon by the plaintiff uppn the part of the defendant was the alleged failure of the engineer of the passenger train to give cautionary signals as the train approached and passed the crossing. Whether or not such signals were given was a matter in dispute. Negligence could be predicated upon such an omission, only if there was a legal duty resting upon defendant to give signals at the crossing in question. Whether there was such a duty is the sole question to be considered.
The duty might arise either from a statute or at common law. The pertinent statute of Mississippi is section 4045 of the Mississippi Code of 1906 (Code 1917, § 6669). The párt of it which imposes the duty reads as follows:
“And shall cause the bell to be rung or the whistle to be blown at the distance of a.t least three hundred yards from the place where the railroad, crosses over any highway or street; and the bell shall be kept ringing, or the whistle shall he kept-blowing, until the engine has stopped or crosses the highway or street.”
If the crossing was a highway or street within the meaning, of section 4045, then the duty to give signals of warning was absolute. If the statute did not apply, a common-law duty might have been created by the situation at the crossing, the determination of which would have been for the jury, if there was any evidence to support the duty. If the crossing was a highway, it will be unnecessary to consider the common-law duty at crossings not highways. Bouvier (Rawles’ Second Revision, vol. 1, p. 947) defines a highway to b,e “a passage, road, or street, which every citizen has a right to use,” and says of it further, “the term highway is a generic name for all kinds of public ways,” including among others named a cul-de-sac. A street is defined to be “a public thoroughfare or highway in a city or village.” Highways are said by the author to be “created either by legislation, by dedication, or by necessity.” Dedication may be express or im
The terms used in the- Mississippi statute are “highway and street.” As the crossing in this case was not in a city or village, the applicable term is “highway.” The test as to whether a road is a highway is whether it is one “which every citizen has a right to use.” Highways are not necessarily confined to roads that are maintained by the county. Some of the Mississippi statutory requirements imposed upon railroads at highway crossings may be applicable only to such crossings as are maintained by counties; but, in the interest of safety, we think the provisions of section 4045 should be ’held to apply to all highway crossings over which the public have the right to travel. If a road has been dedicated by the acquiescence of the landowner in its use by the public, so that the public, as against the owner, have the right to insist on a continuance of the use, its character as a highway is fixed. Bermissive use, no matter how long continued, is insufficient. The presumption obtains that use, with the knowledge and acquiescence of the owner, is adverse, in the absence of a showing of permission.
The district judge, in denying defendant’s request .for a directed verdict, submitted to the jury the issue as to whether there was a duty on the defendant to give warning signals at the crossing. If the road was a highway, within the contemplation of section 4045, this ruling was correct. The evidence tended to show that the road, which crossed the track at the point of the accident, had been used daily by all those who wanted to use it, for a period of from 15 to 25 years. The road led off from the Jeff Davis Highway and ran eastwardly for about 300 yards to and across defendant’s right of way, on the east side of which it entered the farms of Kahn and Brown through a gate. At this point it ceased to be a highway, but continued as a private road on the farms of Kahn and Brown, for the purpose of serving 12 or 15 negro tenant houses on the two farms., The occupants of those tenant houses and those doing business with them used the road in passing between the houses and the town of Durant. There were also two houses on the road, between the Jeff Davis Highway and the defendant’s right of way. The Standard Oil Company had a tank on the west side of the right of way, access to which was by way of the part of the road which was west of the defendant’s right of way. From this long-continued travel over the road, acquiescence on the part of the landowners in its use as a highway will be presumed. It is not the case of a mere farm crossing, put in by the railroad company, and used permissibly and not under claim of right. After laying aside the acts of the railroad company in putting in the crossing , and the cattle guard, there is still evidence tending' to show that the
The judgment of the district court is affirmed.