82 So. 148 | Miss. | 1919
delivered the opinion of the court.
The appellee, plaintiff in the circuit court, recovered a judgment against the appellant railroad company for five hundred dollars as damages for personal injuries, from which judgment this appeal is prosecuted.
The circuit judge instructed the jury peremptorily to return a verdict in favor of the plaintiff, leaving to them the amount of damages to be assessed. The plaintiff was attempting to drive across the tracks of the defendant company on a public road crossing in the town of Rosetta, when his horse became frightened and ran away, overturning the cart and throwing plaintiff to the ground, thereby injuring him. The declaration alleges that the horse was frightened by the sudden approach of a motorcar upon which were riding the’section hands of the defendant company. The negligence alleged is the failure to have a headlight on the car, or to sound some signal of its approach to the crossing.
The testimony in the case is somewhat conflicting. The plaintiff himself testified that before driving upon the crossing he looked in the direction from which the car was coming, but could not see the car, because of the darkness, that it was about 6:30 o’clock in the evening of November 5, 1917; that when his horse got upon the main track it became frightened at this car, which was then about forty feet from him; that he saw the car about the time that his horse became frightened; in his opinion the horse was frightened by the car; that he would have seen the headlight of the car, if it had had one, and would not have gone upon the crossing, neither would he have gone on the crossing, had he heard any signal of the approach of the car. It is undisputed that there was no headlight of any kind upon the car, and that np signal of any kind was given by
The section' foreman in charge of the car testified as a witness for the defendant. He stated that ordinarily his crew finished the day’s work and came into Rosetta abont 5:30 o ’clock in the afternoon; that on the evening in question his crew was somewhat late, because he had had engine trouble; that it was about 6 o ’clock when the accident occurred; that it was not so dark that the plaintiff could not have seen his approaching car; that he saw the plaintiff and his cart; that his motorcar is the usual motorcar used by section crews on railroads in the country; that it was not equipped with a headlight or with a whistle; that he did not need a light, because his work was ordinarily over before dark; that when his attention was called to the plaintiff coming upon the track the horse was running away.' It is testified to by all the witnesses, who testified on this point, that the .car was running at a rate of speed of not over six miles an hour. The section foreman further testified that he applied the brakes to the car imme'diately upon seeing that the horse was frightened, and actually stopped the car ninety-nine feet from the crossing. •
The only contention of the appellant is that it was error to instruct the jury peremptorily to return a verdict in favor of the appellee (plaintiff). This car was equipped to carry twenty section hands and is the ordinary car used by section crews. It is gradually replacing the old- car operated by hand, commonly called the / ‘hand car.” The motor is operated by gasoline. There was no violation of any statutory duty in failing to' give a signal for the crossing, or in failing to have
Since the car did not strike the horse or cart of plaintiff,- section 1985, Code of 1906 (section 1645, Hemingway’s Code), commonly termed the prima-facie negligence statute, has no application. Railroad v. Kea, 96 Miss. 195, 50 So. 628.
There was no violation of any statutory, duty on the part of the operatives of'the hand car. The question then is: Were these operatives guilty of any negligence under the common law which was the proxim'ate cause of the injury of plaintiff. Under the conflicting facts in this case this question was peculiarly one of fact, which should have been submitted to the jury for decision. If the jury believed that it was too dark for the plaintiff to have seen the hand car approaching the crossing, without any lights and without giving any signal of its approach, and that because of this darkness a signal should have been given, or a light displayed, then the jury would- have been warranted in returning a verdict in favor of the plaintiff. On the other hand, if they believed from the testimony that it was not too dark for the plaintiff to have seen the car, and that the car was from ninety-nine to one hundred and eighty feet away from the crossing when the plaintiff drove upon it, then they could well have found that there was no negligence on the paid of the employees of the defendant.
As stated in the opinion of the ’court in McCerrin v. Railway Co., 72 Miss. 1013, 18 So. 420:
*305 “But if the defendant, by its servants, did nothing unusual, and. nothing which ‘ common 'prudence would condemn as being calculated to frighten teams passing that way,’ it is not liable. There are many things in the unquestionably lawful operation of a railroad well calculated to frighten very gentle horses, and yet one who suffers from the fright of his horse cannot successfully complain of the loss sustained, unless it appears- that the railroad company, by its servants, was guilty of wrong in the matter complained of. . The. defendant had the right' to operate its car in the usual and customary way, and at a Safe rate of speed, but had no right to convert it needlessly into a terror inspiring thing, and for such departure from propriety would undoubtedly be liable in damages for any injury caused by this negligence to one free from fault; but rapidity of movement, noises, and sudden appearances are common incidents of the operation of railroads, and one complain-' ing of hurt from these causes must show clearly a departure by the defendant from, custom and propriety to warrant recovery. That what is done is well calculated to frighten very gentle horses may consist with the lawfal exercise of its rights by the defendant, which must be guilty of some wrong to incur liability.
This is one of those cases which should have been submitted to the jury, the triers of questions of fact, upon the question of negligence.
Reversed and remanded.
