74 So. 835 | Miss. | 1917
delivered the opinion of the court.
The appellee, Burch Williams, sued the Yazoo & Mississippi Valley Eailroad Company in the circuit court of Tunica county for fifteen thousand dollars as damages for personal injuries to himself,- and the destruction of his automobile, on account of being struck by one of the appellant’s trains while crossing the railroad track at Clayton in November, 1914. There was a jury verdict and judgment for ten thousand dollars in the lower court from which this appeal is prosecuted.
The facts in the case are stated fully as follows: At Clayton station, an unincorporated village, there is a long passing track, a house track, a depot, and the main line of the appellant railroad company running north and south. A public road runs north and south, parallel with the railroad, on the east side of the depot, main line, and passing tracks, and crosses the railway tracks, from east to west, a short distance north of the depot, and runs thence north along the railroad right
The injury occurred to Mr. Williams at'what we term this “north crossing.” This crossing was not considered a public crossing in the statutory sense that the railroad was required by law to give certain warnings, such as sounding the whistle or ringing the bell, upon approaching it; but it was a private or plantation crossing, which was frequently and habitually used by the public for several reasons, among which was the fact that the south public crossing over the railroad track just north of the depot was frequently and habitually blocked by trains standing on the tracks at that point, which made it necessary for persons desiring to cross the track
On the day of the injury, Mr. Williams had come from the south, traveling up the public, road on the east side of the railroad in his automobile to the south crossing for the purpose of crosing the track at this public crossing, going from east to west on this public road. When lie reached this south public crossing, he found it blocked by appellant’s cars, and after waiting about two minutes he decided that he would follow the plantation road north on the east side of the track and cross over the track at the north crossing. He said he knew that it was a common every day occurrence for this south crossing to be blocked from fifteen to thirty minutes at a time, and he decided to hot wait longer for the crossing to be opened, but pursued the usual and customary way of crossing the track by going up the plantation road on the east side and crossing over at the north crossing into the public road on the west side. So, he started north on this plantation road on the east side of the track, and, when he reached the north crossing and turned west on the crossing to cross the -track, he and his automobile were struck and injured by the passenger train of appellant which was proceeding north on the main line at a rate of speed of about thirty-seven miles per hour. At the time there were two freight trains on the passing track, one of .which was headed south and the other was headed north, and the engine of the north-bound freight
It appears from the record including pictures, diagrams, maps, etc., filed here, that the two private or field roads leading north and east respectively immediately east of the north crossing were comparatively dim, unusual roads, and that the plantation road leading from the south' crossing to the north crossing east of the track appeared to be a plain and much traveled road leading to and over the north crossing. It further appears conclusively from the testimony in this record that the engineer of the passenger train which struck appellee Williams could have seen, and did see, Williams and; his automobile traveling north in the road on the east side of the track for a distance of at east five hundred and thirty-three feet before the passenger train reached the north crossing. The engineer testified that he saw the automobile and Williams while he was traveling the distance of five hundred and thirty-three feet, and' that he was watching the automobile closely, and that he observed that Mr. Williams did not look back toward the train.
The engineer testified:
*241 “I was watching the automobile very closely and just as soon as I seen the left forward wheel make just a turn, why, I thought he was going to try to cross. Why, by his motion of th.e head that he had never looked around, 1 could just see the side of his cheek, and it looked to me he did not look to see where I was, or anything else. Q. And you noticed he didn’t look back? A. I am positive about it. Q. You are sure of it? A. Yes, sir.”
Which testimony shows conclusively that the attention of the engineer was attracted to the traveling automobile and its occupant', and that he had them under observation for a distance of over five hundred feet before the crossing was reached by the train.
The engineer also testified for the railroad company that he had stopped at the Clayton station and then proceeded north on the main line, increasing his speed until he was traveling at the rate of about thirty-seven miles per hour when he passed the north clear end of the passing track at which point the engine of the north-bound freight train was standing. He testified that he sounded the road crossing warning at some point south of the south public crossing, and again about six hundred feet south of the north crossing, and that he started his bell to ringing which was worked automatically, and that it continued to ring until reaching the north crossing; that he saw appellee, Williams, in his automobile traveling north of the plantation road east of the track and observed him cosely, but that he did not think Williams was going to cross the railroad track at the north crossing, but he thought Williams would turn out eastward into the field road leading east from the north crossing; that, as soon as he saw Williams turn west toward the north crossing, he immediately applied the brakes and did everything within his power to stop his train and avert the injury; and that at the time he struck the automobile the speed of the train had been reduced to about eight miles per hour.
The proof in the record shows that the appellee, Williams, was seriously injured, which may be permanent, and from which he suffered for a considerable length of time; and that, in addition to the damages for the personal injury, he claimed that he'was damaged by being incapacitated and prevented from carrying on the business of his plantation, and that he had to hire another man, for one hundred and ninety-five dollars in his place to look after his business, and that on account of his not being able to give his personal attention to his business he lost thirty bales of cotton which were not picked out of the field, and that several of his tenants left his premises. He also claims damages for the injury to his Ford automobile, and hospital expenses and doctors’ bills, etc.
We deemed it necessary to state the facts of this case at length because the case depends upon the whole facts in evidence.
The appellant railroad company assigns several errors of the lower court and urges a reversal of the judgment obtained below; but, after a careful examination of all of these contentions, we think that only two of the grounds
The main question in the case, which has given us considerable trouble, is whether or not the evidence is sufficient to raise a question of fact for a jury to determine, as to whether the railroad company was guilty of negligence in causing the injury to the appellee. If the act of the railroad company causing the injury constituted mere negligence, then the appellee will be entitled to recover damages, rgardless of whether he was guilty of gross negligence which contributed to the injury. We do not hesitate to hold that the conclusive proof in this record shows, as a matter of fact and law, that the appellee, Williams, was guilty of gross negligence in going upon the railroad crossing without using any care or caution whatever for his ■own safety. But this fact cannot defeat his recovery for some amount of damages, if-the railroad company was guilty of negligence. Chapter 135, Acts of 1910.
The condensed facts present this kind of a case: When Williams reached the south public crossing, going west, he found it blocked, as was usual and as was. commonly known, at that point. He then proceeded north on the plantation road immediately east of the railroad to the north crossing, where he intended to cross over west into the public road. This plantation road on the east side
Now, let’s see, Williams was driving along north in his automobile in the plantation road east of and close by the track, and had not looked back nor toward the track west and south of him. As Williams was traveling along in the road, the engineer on the passenger train started from the depot, coming north, and had increased his speed to about thirty-seven miles per hour at the point, where he came in sight of the automobile, which was a distance of over five hundred feet before he and the automobile reached the north crossing. The engineer said that he could clearly see the automobile and Williams in it; that he was watching the automobile closely and paying attention to the occupant of it; and that he was observing it so closely that he could state positively that the occupant, Williams, did not turn his head around and look back toward the approaching train at any time. The engineer could plainly see, and he says that he did see, the automobile moving north on the road toward the
The engineer was observing the car; he could see that it would very likely cross the railroad track at the crossing; he knew the driver did not know of his approach, or the danger and perilous position he was fast placing himself in — the engineer knew all of this and could see and appreciate the whole situation at a point more than five hundred feet before he reached the crossing. He knew this road so frequently traveled would lead the traveler across the track at the north crossing. He knew that the south public crossing was blocked as usual and that persons desiring to cross would, as usual, use the north crossing to cross over to the road on the west side. With this situation within his knowledge and plain view, and with plenty of time in which to act, he increased the speed of his train as rapidly as possible, and proceeded ahead toward this crossing without ringing the bell or' sounding the whistle, one blast of which
We think that the acts and conduct of the engineer, according to his own testimony, were sufficient to raise a question of fact, to be determined by the jury, as to whether or not the railroad company was- guilty of negligence.
We do not overlook the numerous authorities cited by counsel on both sides of this controversy, and have endeavored to familiarize ourselves with the well-established rules of law announced in the decisions cited by counsel. We know that, as a general rule, the engineer, in the character of the case before us, would have a right to assume that a party before crossing the track would exercise due care and caution for his own safety; that the engineer, ordinarily, could rely upon this presumption the same as he could rightfully assume that a party walking upon the track, not in peril known to the engineer, would get off before reached by the approaching train. These rules announce good law and should be followed in proper cases. The case at bar presents the question of fact, to be determined by a jury, as to whether or not, under all the facts and circumstances here, the engineer knew the impending peril of Williams, and that Williams was not aware of it, and should have given some warning, either by bell or whistle, when he saw that the appellee would very probably reach a dangerous position on this- crossing which he was unaware of, and which would result in his injury. The jury could well decide, under the facts and circumstances here, that the engineer did not exercise the care and caution required of a reasonably prudent person, and that he was negligent in the performance of his duty. The jury would have been equally
These close questions of negligence vel non can only be determined safely and righteously by the juries of the country. A standard of conduct constituting negligence,, or due care, in the numerous affairs of life, cannot be safely established from the Bench; but such-questions must be left to the logic and reasoning of the laymen who compose the juries, taken from all the walks of life, and who are familiar with ordinary human affairs and general conditions of everyday life. In view of 'these conclusions, we do not think the lower court erred in submitting the question of negligence to the jury; and, so far as the finding by the jury of the liability of the railroad company for the injuries is concerned, we hold that the judgment of the lower court should be affirmed. Russell v. Atchison Ry. Co., 70 Mo. App. 88; Hodges v. St. L., K. C. & N. Ry. Co., 71 Mo. 50; Davis v. Louisville Ry. Co. (Ky.), 97 S. W. 1122; Cleveland R. Co. v. Baker, 106 Ill. App. 500; Jarrel v. N. O. & N. E. R. Co., 109 Miss. 50, 67 So. 659; Hartman v. Chicago, G. W. R. Co., 132 Iowa, 582, 110 N. W. 10; Corder’s Adm’r v. C., N. O. & T. P. R. R. Co., 155 Ky. 536, 159 S. W. 1144; Nichols v. Chicago R. Co., 125 Iowa, 236, 100 N. W. 1115; 1. C. Ry. Co. v. Dillon, 111 Miss. 523, 71 So. 809; Weiss v. Great Northern R. Co., 119 Minn. 355, 138 N. W. 433; Southern Ry. Co. v. Lawler, 11 Ala. App. 241, 65 So. 859; Valin v. Milwaukee & N. R. Co., 82 Wis. 1, 51 N. W. 1084, 33 Am. St. Rep. 17.
As to the second contention of appellant, that the judgment is excessive, under chapter 135, Acts of 1910, and that nd recovery can be had with reference to the cotton left in the fields, we have given these questions very careful consideration, and we cannot escape the
In the first place, we think that the one thousand, three hundred and fifty ‘dollars claimed by appellee as damages as suffered by him on account of his forced absence from his plantation which resulted in the loss of thirty bales of cotton and several tenants leaving the place is speculative and too remote for recovery in this case. The amount of money, one hundred and ninety-five dollars which was necessary to pay to the manager who took the place of appellee while he was disabled and incapacitated, is recoverable here; but to say that the railroad must pay for the negligence or incompetency of this hired manager, or for the families leaving the place, which might have happened anyway, or to say that appellant must pay for the cotton left in the fields because no one was hired to pick it, would be to charge the appellant with damages which could not be said to have been proximately caused by its- act of negligence, and' damages that did not reasonably and naturally' result from the injury caused by the negligence of the railroad company. Blackman v. Proprietors, 75 Me. 214; 13 Cyc. 141, note 17.
We are also clearly convinced that the judgment for ten thousand dollars in this case is excessive, for the reason that the appellee, Williams, contributed to his injury by his own gross negligence, which would bar recovery here if it were not for our concurrent negligence statute (chapter 135, Acts of 1910), which comes to his rescue and saves him from defeat. But we feel certain that the verdict of the jury is contrary to the evidence and the law, and is manifestly wrong, in this, that the jury failed to diminish the damages in proportion to the amount of negligence attributable to the appellee Williams. We, do not say that the verdict of ten thousand dollars is not supported by the testimony as to the damages and personal injuries of appellee, Williams, and we
The appellant railroad company here was guilty of mere negligence, and appellee, Williams, was guilty of gross negligence; and this court is justified in holding as a matter of law that appellee, Williams, was guilty of gross negligence under the facts in this case, and that the jury failed to diminish the damages on this account, and failed to charge the appellee with his negligence and proportionately decrease the amount of recovery. Therefore the verdict is contrary to the law and the evidence as to the amount of damages assessed. It is rather difficult for'US to apportion, and we would not undertake or attempt to apportion the negligence of the parties in any case, unless the case is so plain and the injustice so palpable that we feel safe in acting, as in this case, in which event we shall not hesitate to do so. Therefore we hold that the proof in this case shows that, as a matter of fact and law, the appellee, Williams, was guilty of greater negligence than the appellant railroad company, and as ten thousand dollars or twelve thousand dollars would have been the maximum amount of recovery allowed to stand in this ease, ‘with the claim for the
“But damages shall be diminished, by the jury in proportion to the amount of negligence attributable to the person injured.”
If the appellee will enter a remittitur here for five thousand dollars, the judgment of the lower court will be affirmed; otherwise it will be reversed, and the case remanded.
Reversed and remanded.