42 So. 236 | Miss. | 1906
delivered the opinion of the court. ■
At the February term, 1906, of the circuit court of Noxubee county, Mrs. Jackson and others sued the Mobile & Ohio Rail
It is always a .condition precedent to the right of one to recover against another for negligence to show that the person seeking to recover was himself guilty of no negligence at the time the accident occurred. He cannot excuse himself from the duty which devolves upon him to exercise ordinary prudence by indulging in any supposition as to what will be the conduct of another, but he must safeguard himself by exercising at all times that care which the ordinary man would exercise under the same circumstances. The replication shows that there was an unobstructed view for a mile and a half or two miles, and, if Jackson had glanced in the direction from which the train was approaching, he must necessarily have seen the train. There was no obstacle on the track, and nothing to obstruct his vision, and the only excuse shown, or attempted to be shown in the pleadings, is that he had no reason to believe that there was any approaching train, and that none was scheduled to pass on the track, at that place, at that time, and that, a freight train having immediately gone before, he acted upon the supposition that no other train would immediately follow this one. We do not think, under these circumstances, that the replication shows that he was acting as a reasonably prudent man would act. It was not necessary for him to stop, look, and listen; but it was necessary, under the circumstances as presented by this case, for him to do one of the three things, and, if he had looked, he would necessarily have seen the approaching train, and thereby saved himself from the disaster which followed his lack of caution in this particular. It may have been negligence in the railroad company not to have blown the whistle or rung the bell, but their failure to do this did not excuse Jackson from the exercise of ordinary care himself. The replication plainly shows that he did not take those precautions for his safety which devolved upon him
The case is easily distinguished from Hopson v. K. C., M. & B. R. R., 87 Miss., 789 (40 South. Rep., 872). In the Hopson case the facts showed that the crossing was a main crossing for an incorporated town, and that the sidetrack at the4ime of the accident was so filled with freight cars at the place of crossing that there was no view whatever of the main line; that the deceased at the time was engaged in hauling staves from the west side to the east side, and that in order to cross the track he had to pass through an opening left for that purpose between the freight cars, about sixteen feet wide, and that his view ivas obstructed, not only by the cars left upon the track by the company, but by storehouses and trees; and that the train was running at the rate of forty miles an hour through this incorporated town, whereas, if it had been run at the statutory rate of six miles, it was manifest that the accident could not have occurred; and the court held, under these circumstances, it was a question to go to the jury as to whether or not deceased was guilty of contributory negligence. But no such case is presented by the facts in this case. Here it was a country road, with an unobstructed view for a mile or more, and the most casual observation on the part of the deceased wrould have disclosed the approach of the train. We think that the action of the court was right in sustaining the demurrer to the replication and dismissing the cause. Railroad Co. v. McLeod, 78 Miss., 334 (39 South. Rep., 76; 52 L. R. A., 954; 84 Am. St. Rep., 630); V. & M. R. R. Co. v. McGowan, 62 Miss., 695 (52 Am. Rep., 205); Winterton v. I. C. R. R. Co., 73 Miss., 831 (20 South. Rep., 157); Crawley v. Railroad Co., 70 Miss., 340 (13 South. Rep., 74); Railroad Co. v. Jobe, 69 Miss., 459 (10 South. Rep., 672); Railroad Co. v. Crockett, 78 Miss., 412 (29 South. Rep., 162).
Let the judgment be affirmed.