97 So. 7 | Miss. | 1923
delivered the opinion of the court.
The appellee (plaintiff) sued and recovered a judgment against the appellant (defendant) for personal injuries
The declaration is in three counts. The theory of the first count is that the depot is centrally located in the town, with the business and residence section closely grouped about it; that the depot platform is habitually used by the citizens of this town as a passageway and a loafing place, which fact was known to the railroad company, and for this reason it was its duty to keep a lookout for people on and near the track in front of the depot. The second count alleged that the train which struck plaintiff was running in excess of six miles an hour in violation of section 4043, Code of 1906' (Hemingway’s Code, section 6667). The third count alleged a violation of section 4045, Code of 1906 (Hemingway’s Code, section 6669), which section requires the bell of the locomotive to be rung or the whistle to be blown at a distance of at least three hundred yards from the place where the railroad crosses over any highway or street, and the bell to be kept ringing and the whistle to be kept blowing until the engine has stopped or crossed the highway or street.
The testimony in the case shows: That the plaintiff went over to the depot in search of a man on private business. He met this party on the depot platform, and they had a conversation, and plaintiff then took a seat on the edge of the platform, with his feet resting on the steel rail of the railroad track. That he was waiting for the return of this party. In front of the depot there are two tracks, one used for south-bound and the other for north-bound trains. The plaintiff saw the train which struck him coming, but states the reason he did not move was because he thought it would use the other track. There is a conflict in the testimony about the sounding of signals for the crossing which is some distance from the depot. There is also conflict in the testimony about the speed of the train at the time of the injury. Plaintiff stayed there until the engine was directly upon him, when •he attempted to move, and was struck and injured by
The court below gave the plaintiff the following instruction :
“The court instructs the jury, that it is the law of this state that every railroad company shall cause each locomotive engine run by it to be provided with a bell of at least thirty pounds weight or a steam whistle which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung or the whistle to be blown at the distance of at 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 be kept bloAving until the engine has stopped or crossed such highway or street; and, if in this case the jury believe from the evidence that the defendant, the Yazoo & Mississippi Valley Railroad Company, failed to observe this laAV, as alleged in the third count of the declaration, and thereby injured said S. C. Cox as alleged in the third count, then the jury shall find for the plaintiff and assess his damages in the manner provided by the instructions in this cause, and to an amount not exceeding five thousand dollars; and if the jury find from the evidence that said railroad company was reckless or wantonly negligent in such violation of said laws, they may, as a part of its assessment of damages, add a sum by way of punishment for said, conduct not to exceed altogether the sum of five thousand dollars.”
This instruction should not have been given. The failure to sound these alarms for the crossing was not ‘the proximate cause of the injury to the plaintiff, for the reason that he saw the approaching train before it reached the crossing, and therefore there could be no causal connection betAveen the failure to sound these alarms and the injury to plaintiff. Billingsley v. Railroad, 100 Miss. 612, 56 So. 790. Another reason why it was error to give this instruction is because the plaintiff was not struck at a crossing; and it is only when the injury occurs at a cross
There is only one count in the plaintiffs declaration upon which liability can be predicated, and that is the fact that the train was exceeding the rate of speed of six miles an hour, in violation of section 4043, Code of 1906 (Hemingway’s Code, section 6667), and that this excess in the rate of speed was the cause of the injury to plaintiff. rThe mere fact that the depot and platform were used as a loafing place by the citizens of this little town would not make the railroad company liable to them for mere negligence. They were either trespassers or bare licensees,'and the rule in both instances is the same, viz. that the railroad company is only liable for injuries to bare licensees when guilty of gross, willful, or wanton negligence. This has been the settled rule of this court for many years. Railroad v. Arnola, 78 Miss. 787, 29 So. 768, 84 Am. St. Rep. 645.
Instruction No. 9 given the plaintiff is also erroneous, in that it embodies the theory of the first count that the tracks and platform were habitually used as a loafing place, and were being so used by the plaintiff at the time of the injury, and the further theory that there was a violation of the six miles an hour law, and also of the failure to sound the statutory signals at a crossing. This instruction tells the jury, in effect that, if the platform and tracks were thus used as a loafing place, which fact was known or should have been known by the Railroad Company, and that there Avas a failure to give these statutory crossing signals, and that the train was being-run at a rate of over six miles an hour, then there should be a verdict for the plaintiff. • It was error to give any instruction or part of instruction' on any ground except that of the violation of the speed statute. For this reason this instruction is confusing and misleading. It should further have embodied the fact that the violation of the speed statute must be the cause of the injury.
These erroneous instructions are in no wise cured by those given the defendant.
Reversed and remanded.