86 Miss. 464 | Miss. | 1905
delivered the opinion of the court.
The declaration in this cause predicates the right of recovery for the injury inflicted upon the negligence of the appellant, consisting of two distinct and different, though combined and concurrent, constituents. The first ground of negligence averred is the running of a train through an incorporated city at a rate of speed far exceeding the statutory limit. The second ground of negligence is the failure to ring the bell or sound the whistle when approaching and crossing a highway
The proposition presented by the appellant, upon which hangs its chief argument, seehing to have the conduct of ap-pellee 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 on the track. Many decisions and a multitude of authorities are cited to show that other courts have held that the mere failure to stop before driving on 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. USTo 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 on a track would be hazardous in the
The other assignments of error presented by appellant, based upon the action of the court in refusing instructions, are without merit. The instructions refused Were either erroneous,
But it is urged no recovery can be sustained for appellee in the instant case because the right of action is by the declaration based on the negligence of the employes of appellants in running the train at an excessive rate of speed, while the case was submitted to the jury on the theory that the negligent failure to give the statutory signals and warnings was' the proximate cause of injury. The reasoning by which this contention is sought to be sustained is entirely too artificial and refined, and will not stand the test when scrutinized in the light of the record. The gravamen of the complaint is the negligence of the appellant. Two palpable omissions of duty, it is averred, constituted that negligence, and both contributed to the injury — the one, indirectly; the other, proximately. Had the excessive rate of speed not been coupled with the failure to give the customary' signals, the accident might not have happened, because the appellee, having timely warning of the approach of the train, could have avoided the dangerous situation into which the appearance of safety entrapped him. We are not prepared to say, therefore, that the jury erred in holding that the negligence in failing to ring the bell and sound the whistle was the proximate cause of the accident.
The judgment is affirmed.