Summary
In Simmons, the Court found that the railroad "constructed grades within the limits of its right of way to conform to and connect with the grades of the highway as maintained by the county authorities."
Summary of this case from Ill. Cent. Gulf R.R. Co. v. TravisOpinion
No. 26846.
May 28, 1928.
1. RAILROADS. Railroad's negligence in failing to give statutory signals before reaching crossing and striking automobile held for jury ( Hemingway's Code 1927, section 7964).
In suit for alleged wrongful injury and death as a result of collision between automobile and train at railroad crossing, evidence as to negligence of railroad in failing to blow whistle or ring bell continuously for three hundred yards before the crossing was reached as required by Hemingway's Code 1927, section 7964 (Code 1906, section 4045), held sufficient to require submission of question to jury.
2. RAILROADS. That giving of statutory crossing signals would not have prevented automobile being blocked on track did not relieve railroad of necessity of giving signals ( Hemingway's Code 1927, section 7964).
The fact that giving of crossing signals, required of railroad under Hemingway's Code 1927, section 7964 (Code 1906, section 4045), would not have prevented automobile from becoming blocked on crossing, did not relieve railroad of necessity of giving such signals as a warning of approach of train, nor relieve it of liability for failure to do so, since travelers on a highway have right to insist that signals be given, not only that they may keep off track, but that they may extricate themselves and their property from position of danger before arrival of train.
3. RAILROADS. Instruction relative to railroad's duty to give crossing signals authorizing recovery on negligent failure to give crossing signals, held not misleading ( Hemingway's Code 1927, section 7964).
Instruction, in suit for injuries and death resulting in collision between automobile and train at railroad crossing, relative to duty imposed on railroad to give crossing signals as provided by Hemingway's Code 1927, section 7964 (Code 1906, section 4045), and authorizing recovery if railroad negligently failed to cause bell to be rung and failed to cause whistle to be blown, held not misleading for failure to require bell to be rung or whistle to be blown in the alternative, since use of word "or" would have required railroad to give both signals in order to free itself from fault.
4. RAILROADS. Instruction predicating railroad's liability solely on failure to maintain proper grade within right of way held erroneous under evidence ( Hemingway's Code 1927, section 7903).
Instruction, in suit against railroad for injury and death resulting in collision between automobile and train at railroad crossing, predicating liability of railroad solely upon negligent failure to construct and maintain necessary and proper grades within limits of its right of way pursuant to Hemingway's Code 1927, section 7903 (Code 1906, section 4053), held erroneous in view of evidence that grade was properly constructed so as to conform to and connect with grades of highway as maintained by county authorities.
5. RAILROADS. Railroad has duty only of making necessary and easy grades over roadbed to permit safe and convenient passage by persons using reasonable care ( Hemingway's Code 1927, section 7903).
Under Hemingway's Code 1927, section 7903 (Code 1906, section 4053), requiring railroad when crossing highway to make proper and easy grades so that railroad may be conveniently crossed, and to keep such crossings in good order, it is not duty of railroad to make such grades as will make crossing of its roadbed safe and easy under any and all circumstances, but only to make such necessary and easy grades as will permit safe and convenient passage over roadbed by persons using reasonable care.
6. TRIAL. Instruction that contributory negligence of person injured in collision between automobile and train would not bar recovery held not erroneous, when considered with instructions as a whole ( Hemingway's Code 1927, section 516).
In suit for injury and death resulting from collision between railroad and automobile at railroad crossing, instruction to effect that contributory negligence of person injured would not bar a recovery held not erroneous, since it did not preclude jury from diminishing the damages in proportion to amount of negligence attributable to deceased as authorized by other instructions thereon, which when read together announced entire statutory law as found in Hemingway's Code 1927, section 516 (Laws 1920, chapter 312).
7. DEATH. Instruction authorizing consideration of mental and physical pain between time of injury and death in assessing damages held erroneous under evidence.
Instruction in suit for injury and death resulting in collision between automobile and train at railroad crossing authorizing jury to consider in assessing damages mental and physical pain suffered by deceased between time of injury and death held erroneous under evidence that injured person was not conscious or in condition to suffer pain after receiving injury until time of death.
APPEAL from circuit court of Marion county; HON. J.Q. LANGSTON, Judge.
R.V. Fletcher and T.J. Wills, for appellant.
The peremptory instruction should have been granted. The testimony shows without conflict that the train was running at its usual and customary rate of speed. The charge of negligence as to the excessive speed was abandoned and not submitted to the jury. We are, therefore, left but two questions of negligence for consideration. 1. Was the railroad company guilty of negligence in failing to construct and maintain a proper highway crossing, and if it was, did that contribute to the injury and death of the deceased? 2. Did it fail to blow the whistle or ring the bell for the distance required by statute, and if it did, did its failure so to do contribute to the injury and death of the deceased? Appellant had no power or authority to locate the highway over its track. It had no discretion as to the point where the highway should cross its track. The board of supervisors is given full and complete jurisdiction and control over highways and bridges by section 170 of the Constitution of 1890. Sections 8340 and 8341 of Hemingway's Code, provided how public roads may be laid out, altered and changed. This constitutional power granted to the board of supervisors is paramount and absolute. The legislature is without authority to change that supervision and control except as provided for in the Constitution. State ex rel. Knox, Attorney-General, v. Board of Supervisors, Grenada County, 141 Miss. 701, 105 So. 541. No negligence therefore, can be imputed to the railroad company because of the location of the highway and of the crossing over its track. It could not have prevented even by an injunction the board of supervisors from laying out this highway across its tracks at the point where it was constructed. Sec. 7903, Hem. Code 1927, provides: "Where a railroad is constructed so as to cross a highway, and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highway, so that the railroad may be conveniently crossed, and to keep such crossing in good order." . . .
This court said in Ry. Co. v. Sneed, 84 Miss. 252, 36 So. 261: "The grade required depends, of course, upon the extent to which it has been found necessary to raise or lower the natural surface of the ground to make the grade accord with the established grade of the railroad. Whether such grades are to be slight or great varies at each crossing with the natural obstacle which may be presented by the particular location." All that the railroad company is required to do is to make proper and easy grades in the highway so that the railroad may be conveniently crossed. It is not its duty to construct it so that it will be easy to cross or easily crossed under any and all circumstances. It is required to make proper and easy grades in the highway in order that the railroad may be conveniently crossed so as to be reasonably safe for a person using ordinary and reasonable care in the use thereof. Taking the testimony introduced by the plaintiff for the purpose of showing the condition of this grade we find that going ten feet from the railroad track towards Columbia the rise is nine inches. The next ten feet is eight inches. The next or third ten feet, nine inches, the next or fourth ten feet out from the track is eight and one-half inches, and the last ten feet out to the edge of the right of way is nine and one-half inches. The road is thus made to join the grade of the highway as constructed by the county fifty feet from the track at a rise of forty-four inches — very little grade indeed as compared with the grade on some of the highways throughout the state. Complaint is made that the highway was narrow, and too narrow for cars to conveniently pass each other on the right of way. It is conclusively shown that the highway was only fourteen feet in width, and that the crossing itself was nineteen feet, eleven inches wide. Conceding, however, that it was narrow, the traveled portion of the road was in good condition. The crossing itself was in as good condition as any other crossing on the road. The railroad was not required to construct or maintain the highway other than that portion which might be interfered with by the construction of its roadbed. That very question was under consideration in the Sneed case, supra, and this court held that the railroad was not required to construct or maintain the highway even on its right of way; and all that it was required to do was to perform the grading necessary for a convenient approach to the crossing. No right to recover can be bottomed upon any charge of negligence with respect to the grade and crossing in question.
The testimony in this case showed that the whistle was blowing and the bell ringing when first observed by plaintiffs' witnesses, who were at the crossing at the time of the accident. The two witnesses testifying with respect thereto, were Reddick and Crews. Crews' car had been struck in the rear by Simmons and knocked across the track. He was greatly excited when the train came in sight. This distance was shown by other witnesses to have been something less than fifteen rail lengths. The bell was ringing and the whistle was blowing. When Reddick first discovered the train about sixty feet from the crossing, the bell was ringing and the whistle was blowing. There is testimony of negroes in cars a quarter of a mile away that they did not hear the bell ringing, and one witness said that it was not ringing, and if it had been, he would have heard it. The testimony, however, of the train crew, and especially of the engineer and fireman was to the effect that the bell had been ringing for a distance of more than a mile. The bell is operated by an automatic air ringer and when turned on to ring for the first crossing, the engineer stated that it continued to ring until the last crossing was passed. We think that this establishes, as a matter of law, that the signal was being given. Conceding, however for the sake of argument but not admitting that the jury found that the signals were not given for the three hundred yards required by the statute the failure to give the signals could not in any wise have contributed to the injury and death of the deceased Simmons. He was traveling on the highway at a rapid rate of speed. He went around this steep curve in violation of the law. He ran into Crews' car that was either standing still or just slowly moving while another car was passing. Just before reaching Crews' car he went around the sharp curve and then proceeded at a rapid rate of speed down this steep grade to the point of impact with Crews' car. He struck Crews' car with such force that it broke the bumper off the front end of his own car. Sec. 6682, Hemingway's Code 1927, provides: "Upon approaching a bridge, levee, sharp curve or steep descent, and also in traversing such bridge, levee, curve or descent, a person operating a motor vehicle shall have it under control and operated at a rate of speed not exceeding ten miles per hour, and upon approaching a crossing of intersecting highways at a speed not greater than is reasonable and proper, having due regard to the traffic then on such highway and the safety of the public." This law has been construed and the duty imposed by the statute announced by this court. Flyne v. Fondren, 122 Miss. 248, — So. 188. It was shown by the evidence that Simmons had no brake, or an insufficient brake to hold and control his car. He was going down this long hill and it appears from the record that the reason he did not stop or control his car before striking Crews was his inability to do so because of the absence of sufficient brakes to hold or control the car. His operation of the car, however, on the highway without brakes was in violation of the law.
Simmons, by operating his car without sufficient brakes, in violation of the law, placed himself in the situation where in going down this hill from a point two hundred eighty-five yards from the railroad crossing, caused his car to be running at such speed and to gain such momentum that when he came to the curve and the steep declivity, his car was beyond his control. He operated it in violation of law, requiring him to go around the curve and to go down the declivity at a speed not to exceed ten miles an hour, because it was beyond his control. If he could have controlled his car, certainly he would have done so without striking Crews' car with such impact as to break the front bumper off his own car.
Whether the whistle had been blowing or the bell ringing previous to the time Crews saw and heard it, could have had no causal connection with the injury sustained by Simmons on the crossing. Considering that the train was not within three hundred yards of the crossing at the moment that Simmons' car struck Crews' car, as was testified by Crews, and considering the conditions and circumstances surrounding the two cars, Simmons' car and Crews' car being carried by the impact across the track, Simmons could not stop his car nor have driven it on. A signal with the volume and intensity of a belching Vesuvious for the entire distance of three hundred yards could not have arrested the progress of Simmons' car or changed the situation that placed him and his car on the track and in front of the moving train. R.C.L., p. 182, par. 66; R.R. Co. v. Gilmore, 33 Ky. L. Rep. 74, 109 S.W. 321; 21 L.R.A. (N.S.) 723; R.R. Co. v. McAlpin, 33 Am. Cas. 1914A, 532; 3 Elliott on Railroads, p. 429, par. 1646; 22 R.C.L., p. 987, par. 15. The most recent decision on this point was rendered by the supreme court of the United States. See Railroad Co. v. Goodman, 48 S.Ct. 24; Howell v. R.R. Co., 75 Miss. 242, 21 So. 746; Clisby v. R.R. Co., ___ Miss. ___, 29 So. 913; A. V.R.R. Co. v. Carter, ___ Miss. ___, 27 So. 993; L. N.R.R. Co. v. Daniels, ___ Miss. ___, 99 So. 434; Vaillant v. R.R. Co., 158 N.W. 311; Lewis v. Flynt, 52 Am. Dec. 790; The Santa Rita, 173 Fed. 413; Clark v. R.R. Co., 286 Fed. 915; R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406.
We now come to a consideration of the errors assigned on the giving of instructions, at the request of the plaintiff. The instruction requested told the jury that it was the duty of the defendant to maintain, within the limits of its right of way, a crossing that could be conveniently crossed, and that if grades were necessary that the company should construct such grades, within the limits of its right of way, as to make the crossing easy and convenient. In other words, the court told the jury that the duty rested upon the defendant to construct and maintain, within the limits of its right of way, a crossing so that the same could be conveniently crossed and to make the grades, within the right of way, so that the crossing would be easy and convenient. This wording of the instruction is in direct conflict with the statute. It places upon the railroad company a duty that the statute does not and was never intended to impose. In the light of the facts in this case, it is apparent that it was the intention of the court to tell the jury that it was the duty of the railroad company to grade down the grades in the highway within its right of way and off the crossing so that the grades would be easy and convenient to travel over. This is in direct conflict with the statute as interpreted in the Sneed case, supra. In the Sneed case the court defined the duty as follows: In order that the public traveler may not be interfered with, nor the rights and privileges of the public may not be interfered with, nor the rights and privileges of the public in any wise curtailed, the railroad company is required to make such necessary and easy grades as will permit safe and convenient passage over its roadbed. Whether such grades are to be steep or slight depends entirely upon the natural obstacles and the conditions and circumstances surrounding the crossing. The purpose and intention of the statute was to require the railroad to bear the expense of the grading and installation of a crossing that could be conveniently crossed by members of the public in their exercise of ordinary and due care in traveling over the same.
The instruction on damages is erroneous. It refers to the wounding and suffering of the deceased. The evidence in this case showed conclusively, and without conflict, that the deceased experienced no pain and suffering after he was struck. He was knocked unconscious and died within ten or fifteen minutes thereafter without having ever regained consciousness. To have directed the attention of the jury to his pain and suffering, in this instruction, without having defined the character of suffering for which a recovery could be had, left it to the jury to speculate with respect thereto, and without legal guides to control them included in their verdict an amount for suffering as the element of damages in this case.
The instruction as to the blowing of the whistle and the ringing of the bell, given by the court, was erroneous. In the first place, as a matter of law, the ringing of the bell and the blowing of the whistle could not have effected any change whatever in the situation of the train and of the deceased. The failure to give the signals could not have in the slightest degree contributed to Simmons' injury and death. The instrument left to the jury the question of finding whether or not as a fact the whistle was blown and the bell was rung when, as a matter of law, under the facts that were without dispute, the ringing of the bell and the blowing of the whistle could not have influenced the situation or prevented or tended in any wise to prevent the collision and injury at the crossing. There is a further error in this instruction, in that the court instructed the jury that if they believed that the defendant negligently failed to sound the whistle, as aforesaid, and negligently failed to ring the bell, as aforesaid, and that such negligence contributed to the injury and death of the said Simmons, then it was the duty of the jury to find for the plaintiffs. We admit that ordinarily the use of the word "and" instead of "or" may be grammatically and technically a correct expression of the law. Sec. 7964, Hemingway's Code 1927. In this case, however, under the proven facts as disclosed by the record, the giving of the instruction so worded was calculated to mislead the jury. We think that the jury's disregard of the court's instruction, telling them that the deceased Simmons was guilty of gross negligence, and also in telling them to reduce the amount of the damages in proportion to the negligence, might well be presumed to have resulted partially from the misunderstanding of the language of this instruction.
The giving of the instruction on contributory negligence was improper and erroneous. As an abstract principle of law the deceased Simmons' contributory negligence would not bar a recovery. The defendant railroad company, however, must have also been negligent, which negligence approximately contributed to the injury and death to place liability on it. The defendant was defending on the theory that the unlawful acts and negligent conduct of the deceased was the sole proximate cause of his injury and death. His conduct as shown by the witnesses introduced by the plaintiffs themselves, was such as to warrant the court in instructing the jury that the deceased's conduct was grossly negligent. This court has held that under such circumstances it is proper for the trial court to instruct the jury that such conduct is gross negligence. R.R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954. This instruction told the jury that the negligence of Simmons would not bar a recovery without any further explanation or limitation with respect thereto. If the instruction had been enlarged so as to say that the fact that he was guilty of contributory negligence would not bar a recovery if the defendant was also guilty of negligence approximately contributing thereto; or, if it had said that defendant's contributory negligence would not bar a recovery unless it was the sole cause of the injury, a proper and correct announcement of the law would have been made. It is evident from the size of the verdict in this case that the jury was overreached. This court said in Ry. Co. v. Williams, 114 Miss. 236, 74 So. 835: "What is very evident and plain to us is that the jury failed to diminish the amount of damages in proportion to the gross negligence of the appellee Williams, and we think this court should take notice of this concurrent negligence statute in its entirety, and see that the juries observe the provisions therein, and diminish the damages in proper cases where the evidence manifestly justifies it." See, also, Tendall v. Davis, 129 Miss. 30, 91 So. 701.
Mounger Mounger, Hall Hall and Davis Conner, for appellees.
Counsel complain of the instruction defining appellant's duty to grade its crossing. Counsel say this instruction is an incorrect statement of law, because it placed upon the defendant a duty far in excess of the duty imposed by law. The statute says that the company shall make proper and easy grades within the right of way, so that the railroad can be conveniently crossed, and shall keep such crossing in good order. The instruction simply submitted to the jury the right to find for the plaintiff if they believed from the evidence that the proximate cause of Simmons's death was negligent failure of the defendant to construct and maintain said crossing within the limits of its right of way with proper and easy grades, so that it could be conveniently crossed. If this negligent failure was the proximate cause of Simmons' death then the jury should find for the plaintiff. Counsel refer to the case of G. C. Ry. Co. v. Sneed, 84 Miss. 252, 36 So. 261. The facts of that case do not make it at all parallel with the facts of the case at bar, nor applicable to the case. Following up the complaint against this instruction counsel say the action of the board of supervisors compelled them to make the very grade which they made. We contend that the railroad company cannot be relieved in that way. The railroad company could have constructed the road within the limits of its right of way so that there would be an easy grade at least for fifty feet on either side; that it would be for one hundred feet and within the right of way wide enough for two cars to pass; and so nearly level that a car would not simply by the force of gravity be carried down to the center of the track and be made to stop on the track as the lowest point. See I.C.R.R. Co. v. Swalm, 83 Miss. 631; I.C.R.R. Co. v. Copiah County, 81 Miss. 685
Counsel complain that the court submitted that the defendant was required to provide its engine with a bell of at least thirty pounds weight, and a steam whistle, etc., and they proceed to say that the jury was told that if it found from the evidence that it negligently failed to sound the whistle, and negligently failed to ring the bell, etc., and they say the language of this instruction placed on the railroad company the duty of both blowing the whistle and ringing the bell continuously for three hundred yards, which they say the railroad company did not claim to have done. The instructions does not tell the jury, as counsel alleges, that if they found from the evidence that the defendant negligently failed to sound the whistle and negligently failed to ring the bell, and such failure contributed proximately to the injury, then it was the duty of the jury to find for the defendant. It will be observed that when the court came to tell about negligent failure, it required that there should be a negligent failure in both regards and not simply on one. There should be a negligent failure to ring the bell, and in addition to that there should be a negligent failure to blow the whistle, and the two failures together, there being a failure in both regards, then the defendant was at fault.
Counsel claim that the instruction in question was erroneous because they say, as a matter of law, the ringing of the bell and the blowing of the whistle could not have effected any change whatever in the situation of the train and of the deceased. On the contrary, we believe it is reasonable to think and for the jury to consider that if the signal had been given three hundred yards away instead of one hundred feet away, as they were that Simmons might have gotten out of his car, taken his child out and saved his life and that of the child, even if the car which was blocked on the track was demolished. It was for the jury to say whether or not the few second's time would not have been worth something to Simmons and his baby towards helping to save their lives. We have in mind the case of I.C. Railroad Co. v. Jones, 75 Miss. 790 — a case where it was held that the question whether or not an injury was attributable to the speed of the train is one for the determination of the jury, and the court held that where a long freight train was passing through the city at a speed of about fifteen miles an hour when "Tag" a dog, came along and attempted to cross under the passing train somewhere near the middle of the train and was killed; that the question as to whether the running of a train at a greater speed than six miles per hour was the cause of the killing of the dog was a question for the jury and cast upon the defendant the burden of showing that the running of the train at a greater speed than six miles per hour was not the cause of the killing of the dog. See R.R. Co. v. Jones, 75 Miss. 972; R.R. Co. v. Crominarity, 86 Miss. 469; Skipwith v. R.R. Co., 95 Miss. 52; R.R. Co. v. Hawkins, 82 Miss. 209; Fuller v. R.R. Co., 100 Miss. 728.
It is first presented by counsel that there should have been a peremptory instruction for the defendant. Counsel say that the charge of negligence as to excessive speed was abandoned and not submitted to the jury. The charge of excessive speed taken in connection with the nature of the crossing and the construction of the road, as charged in the declaration, was not abandoned and counsel have no authority for saying that this charge was abandoned. The most that could be said in favor of the defendant is that these matters were in conflict. It cannot be said that our contention was not supported by strong evidence and by the testimony of numerous witnesses. Further pursuing the argument that the court should have granted a peremptory instruction counsel state that the proximate cause of the injury was the negligent and unlawful act of the deceased Simmons, himself, in so operating his car as to place it on the track immediately in front of a moving train at a time when it was impossible for the train to be stopped before the injury and damage was inflicted, and in this connection counsel further say, "it cannot be contended that if the whistle had been blown or the bell rung that he would have stopped before he went on the track." There is absolutely nothing showing that Simmons went onto the track in front of a moving train, but the evidence on the contrary is that he went onto the track before the train ever came in sight, or ever came within a point where it could have been seen, and the contention of counsel for appellant at other places in their brief is that he did in fact go on this track before the train came in sight. We contend that at the time he went on the track the train was not in sight and he could not see it any more than Cruise could, and our complaint is that the condition of the crossing was such that those parties got on the track and got in a jam when there appeared to be no danger, and afterwards the train came in sight of the crossing and was running in such manner and was handled with such negligence that they did not give Simmons opportunity to save himself and extricate himself from a position into which he had fallen by reason of the defective crossing.
Counsel cite Ry. Co. v. Goodman, 72 Law Ed. 22. The Goodman case throws no light whatever on the propositions of law involved in the case at bar. The facts in that case were that a man drove onto a railroad track immediately in front of an approaching train without stopping or looking or listening, while in the case at bar Simmons went onto the track before the train approached and was held on the track by reason of the fact that the appellant company had negligently failed to maintain the crossing in the manner required by statute, and by reason thereof it was impossible for Simmons to move his car from the track. The principle of law on which the Goodman decision is based is that contributory negligence bars a recovery. This is not the law in Mississippi. Counsel cite with this authority Howell v. Ry. Co., 75 Miss. 242. At that time contributory negligence was a bar, in the state of Mississippi. Furthermore the Goodman case does not deal with a statutory requirement as to convenient and easy grades at crossings, neither does it deal with a statutory requirement as to ringing a bell or blowing a whistle. The Goodman case is no more than an announcement of an old rule, to which the courts of the United States have always held where there was no comparative negligence statute.
Counsel seem to make the contention that the court in giving this instruction should have gone further and should have told the jury that the crossing should have been such that it could have been conveniently crossed by travelers on the highway in the exercise of ordinary and reasonable care. They complain that it was left open to the jury to reach the conclusion that the court intended to tell them that the highway must have been maintained safe and convenient to travel by any and all kinds of reckless travelers, and that the instruction may have misled the jury to believe that the road should have been so safe that it would not have been possible for any man traveling in any kind of reckless way to be injured thereon. There is no justification for the contention that a jury might have been so misled. The jury are supposed to have intelligence enough to put a reasonable interpretation on this instruction. If the defendant wanted the attention of the jury to have been called to that fact they could have easily done so by obtaining an instruction to that effect.
Counsel are in error in saying that the evidence shows conclusively that the deceased did not suffer any pain. The conductor on the train in question, testified that when he reached Mr. Simmons he found that he was not dead. The conductor then went to the child and found that it was not dead. The conductor repeated this and then said he saw him breathe, saw him struggle for breath and saw him continue to struggle for breath. The conductor said it seemed he wanted to breathe and live. He was living when they picked him up and he lived ten or fifteen minutes. See Cumberland Co. v. Anderson, 89 Miss. 732.
Counsel contend that the giving of the instruction on contributory negligence was erroneous. The Atkinson case, as referred to by counsel, 117 Miss. 118, does not sustain their position. This instruction was in the words of the statute, sec. 502, Hemingway's 1917 Code; sec. 516, Hemingway's Code 1927. In Ry. Co. v. Archer, 113 Miss. 158, practically the same instruction was given and was held by the court to be proper. And see Lindsey Wagon Co. v. Nix, ___ Miss. ___, 67 So. 459. The court will bear in mind, however, that the jury in the case at bar were not left uninstructed in regard to their right to diminish the damages, but they were specifically instructed upon that point and had the law on the subject fully.
The appellees, Mrs. Lucille Simmons and her minor son, William E. Simmons, Jr., instituted suit in the circuit court of Marion county for damages for the alleged wrongful injury and death of William E. Simmons, deceased, the husband and father, respectively, of the appellees, and from a verdict for the plaintiffs for thirty thousand dollars this appeal was prosecuted.
The declaration is very long, but the allegations thereof necessary to be here stated are substantially as follows:
That on the 2d day of January, 1927, the defendant operated a railroad through Marion county; that there was a public road in that county known as the Columbia and Baxterville road, the general course of which was the same as that of the railroad, which was approximately northwest and southeast, and said roads were so constructed that there was a crossing at a point about half a mile west of the Lamar county line; that on said date, the said William E. Simmons, in company with his fourteen months old child and the plaintiff William E. Simmons, Jr., was traveling over said public road by automobile, and while in the observation of reasonable care when crossing said railroad was injured by a train negligently operated over said crossing at a high and excessive rate of speed; and that from the wounds so received, the said Simmons died shortly thereafter.
It was further alleged that the said crossing, as then and there kept and maintained, was an unsafe and dangerous one; that as a traveler approached the crossing from the west, as decedent did on the occasion when he was injured and killed, he would be traveling somewhat parallel with the railroad on the north side thereof, but the railroad would be entirely out of sight by reason of the fact that at that point it is constructed in a deep cut and on a long, sharp curve, while the public road is on a high hill and there intervenes between the railroad and the public road the side of said deep cut, as well as a growth of trees and underbrush; that in approaching said railroad, the public road curves sharply to the right and goes down a steep grade as the road turns to cross over said railroad to the south side; that said grade continued all the way to the track of said railroad, and across the north rail thereof, and finds its lowest point at the place where the south rail of said railroad crosses the public road; that the public road as it approached the railroad was very narrow, and was constructed out of loose sand and gravel, and by reason of the manner in which it was constructed ditches or depressions were washed in the center of said road, making it impossible, except with great caution, for two cars to pass on said road at that point; that as the public road leaves the railroad on the south side, it goes straight up a hill on a very steep grade, which begins at the south rail of the railroad; that the road passes between high embankments which cut off the view of the railroad in either direction; that the public road as constructed on the defendant's right of way on the south side is narrow and on a steep grade, and is constructed of loose sand and gravel, and the traveled portion is so closed in by ditches on either side, and especially near the railroad track, that only one car or vehicle could pass, and one car on the public road would block it; that the condition of said crossing as kept and maintained at that time was such that cars meeting at or near said crossing were delayed, and were liable to be detained immediately upon said crossing; that the said crossing was also unsafe and dangerous for the reason that the part of said railroad lying to the east of said crossing was constructed on a curve and in such a way that a train approaching said crossing from the east would be running on a long curve, turning at all times to the left, and before reaching said crossing would pass into a cut, with a high embankment on the south side of the railroad, which projected itself between the train and the point where the public road crosses the railroad, so as to cut off the engineer's view of said crossing until the train was close to it; that for a long distance before the railroad reaches said crossing, and to the east of same, and for a long distance west thereof, the railroad goes down a very steep grade, which had a tendency to cause a train approaching said crossing to run rapidly and with less noise than trains usually make on ordinary tracks; that the said railroad company had failed to construct and maintain said crossing with easy grades in the highway so that the railroad could be conveniently crossed; that neither the railroad company nor the county so constructed and maintained said highway, and that the same was in bad order, unsafe, and dangerous; and that the defendant knew of this unsafe and dangerous condition of the highway, and, consequently, should have operated its trains over this crossing with great care and caution, but neglected and failed to do so.
It was further alleged that the defendant caused the train in question to approach the said crossing at a high, rapid, and excessive rate of speed, and neglected either to cause a bell to be rung or a whistle to be blown for a distance of at least three hundred yards from the place where the railroad crosses said highway, and neglected to keep said bell ringing or whistle blowing until the engine stopped or crossed over the highway at said crossing; but, on the contrary, neglected and failed to cause the whistle to be blown or a bell to be rung at any time until the train was in thirty or forty feet of said crossing; that it then and there caused its train in approaching said crossing to run down a steep grade without making the noice usually made by trains running on ordinary tracks, and without giving any warning whatsoever, while the decedent's car was detained on said crossing with the way in front of him blocked by another car immediately in front of his car, and occupying the entire width and passable portion of said road; that while decedent's said car was halted and detained on said track, and while his two children were in said car as it stood upon said crossing, the said train approached with such rapidity that the said decedent did not have time, nor was it in his power, either to get said car off the crossing or to get his children out of said car, or to get out of the way of the train, and by reason thereof, while he was attempting to get his children out of said car, he was struck by the train so negligently operated.
The declaration further alleged that the proximate cause of the death of the said W.E. Simmons was: First, the negligence of the defendant in failing to maintain said crossing, within the limits of its right of way, with proper and easy grades so that said railroad could be conveniently crossed, and its failure to keep said crossing in good order; second, the negligence of the defendant in operating its train over said crossing at such a high and excessive rate of speed, while knowing the condition of the crossing, and that it was not in good order, and knowing that by reason of the manner in which it was kept and maintained it could not be conveniently crossed; and, third, the negligence of the defendant in operating its said train as it approached said crossing at a high, rapid, and excessive rate of speed, neglecting at the same time to blow a whistle or ring a bell at a distance of three hundred yards from the place where the railroad crosses said highway, and the failure to keep such whistle blowing or to keep such bell ringing until the engine stopped or crossed over said highway — it being alleged that all these omissions and acts of negligence contributed to the injury and death of decedent.
The facts shown by the evidence are substantially as follows:
The decedent, William E. Simmons, was thirty-four years of age, and was born and reared in Pike county. At the time of his injury and death, he was teaching school at Eureka, in Lamar county, and for the four preceding years had taught at Carnes, in Forrest county. He owned a farm in Pike county, and during the five years he was teaching in Lamar and Forrest counties he made frequent trips to and from his farm, passing along the highway over the crossing in question. At the point where this highway crosses it, the railroad runs in a general northwesterly and southeasterly direction, but at the point of intersection runs almost east and west. The crossing is on what is known as "Hub hill," and from a point in the valley several miles north of this crossing to a point south thereof the railroad is constructed on a steep grade, and in making this steep ascent it makes numerous curves, following the cuts and ravines in this hill. The railroad was constructed many years ago, and some time after its construction there was a highway laid out and maintained on the north or east side thereof, which runs in the same general direction as the railroad up this hill, but did not cross the railroad until it reached a point near Baxterville about a mile south of the point where the accident occurred. Several years ago the board of supervisors of Marion county changed this highway so that from a point one hundred and eighty-five feet from the railroad on the north or eastern side thereof, the highway was turned in a southerly direction at a sharp angle on the hillside, and constructed to run down the hill to the railroad track and up a hill on the other side, the railroad track being at the lowest point between the crests of the two hills. From the crossing where the accident occurred to the apex of the hill on the highway north of the crossing is eight hundred seventy-five feet, while it is one quarter of a mile from the railroad track to the apex of the hill to the south. From the point of deviation of the highway from its old course on the north side of the railroad to the track is one hundred eighty-five feet, and fifty feet of this distance was on the railroad right of way. The elevation from the railroad track for the first fifty feet or to the edge of its right of way, is forty-four inches; for the next fifty feet, or the first fifty feet off the right of way, the rise in the grade of the highway is fifty-three and three-fourths inches, while the rise in the grade of the next fifty feet going north is fifty-seven and three-fourths inches, making the rise in the grade, or the elevation, of the first one hundred feet off the right of way, one hundred eleven and one-half inches, and the grade or elevation in the highway continues for seven hundred thirty-five feet further north.
On each side of the railroad, and fifty feet from the track, the railroad company had erected the regulation Mississippi law stop signs, and on the highway three hundred yards back from the crossing on each side of the railroad toward the north and the south it had erected signs that read, "Danger, Railroad Crossing Three Hundred Yards Ahead."
The evidence further shows that the decedent owned and was driving a Chevrolet touring car, and there is evidence tending to show that the brakes thereon were in a defective condition. At the time of the accident, a Gulfport car driven by one Cyrus Reddick, which was traveling north, had passed over the crossing, and when just opposite the Mississippi law stop sign it met a car going south which was driven by W.H. Crews. Reddick testified that the road at that point was not wide enough to permit the cars to pass conveniently, and for that reason he was compelled to pull to the side of the road into a ditch and stop, and that when Crews' car was just opposite him he slowed down and stopped; that at that moment the decedent, Simmons, came down the grade in his car, traveling in the same direction as Crews, and bumped into the back of Crews' car and caused it to run down the grade to and across the railroad track, Simmons' car all the while continuing to bump into Crews' car.
Crews testified that just as his car cleared the railroad track he applied his brakes so as to stop it and hold it. Simmons' car, which was immediately behind and against Crews' car, was thus blocked and held on the railroad track. Just about the time the car came to a stop on the railroad track a train came from the south around the curve in the track; and the testimony is undisputed that a person on the track at the crossing could see a train approaching from the south for fifteen rail lengths or four hundred ninety-five feet, while at the point where Crews was sitting in his car it could be seen for only a short distance.
The witness Reddick testified that about the time that Simmons' car stopped on the track he heard the train coming; that he looked through the back curtain of his car and saw Simmons apparently reaching into the back of his car; that as the train approached this crossing the bell was not rung nor the whistle blown until the train was within about seventy feet of the crossing.
The witness Crews testified that when Simmons' car bumped into his car, it caused his car to run across the track, Simmons' car being immediately behind his car; that about that time the train came into his sight around the curve about sixty feet away; that he applied his brakes to hold his car in the position it then was; that the train whistle gave several short blows just as it came into his sight, and the bell was then ringing, but that if the whistle was blowing or the bell continuously ringing for three hundred yards before it reached the crossing he did not hear it. Several other witnesses, who were on the highway several hundred yards away from the crossing, but who were aware of the fact that the train was passing north, and were within three hundred yards of the railroad track, testified that they heard the whistle blow, but did not hear the bell, and that if the whistle was continuously blown for three hundred yards from the crossing or the bell was continuously ringing for that distance, or from the crossing south of the crossing where the accident occurred, they did not hear it.
The engineer and the fireman, as well as other witnesses for the defendant, testified that the bell had been continuously ringing from a point south of a crossing a mile or more south of the crossing where the accident occurred, and that as the train approached the crossing where the accident occurred the regular crossing signal was blown. The engineer also testified that, on approaching the crossing, he was on the outside of the curve, and for that reason he could not see the crossing, and was watching the fireman; that when about three hundred fifty feet from the crossing the fireman gave him a signal for an emergency stop; that he applied his emergency brakes and blew his whistle a continuous blast; that he did not come out of the curve so that he could see the crossing until the front of his engine was about eighty feet from the crossing; that he then saw Simmons step on the track and flag, and then turn and apparently try to push the car off of the track; that when the front of the engine was within about twenty feet of the crossing it obstructed his view of Simmons; that the train was traveling about twenty-five or thirty miles per hour and was stopped in about six hundred feet, the rear end of the train stopping about sixty feet from the crossing, and the front end about two hundred fifty feet.
The fireman testified that on approaching this crossing the engineer blew the crossing signal, and that the bell had been continuously ringing for more than a mile; that when the train came around the curve so that he could see the crossing he saw a car on the crossing, but on account of the swing of the locomotive and its outward movement around the curve he thought at first that the car was moving; that as soon as he discovered that the car had stopped, he notified the engineer and flagged him down; that he was about fifteen rail lengths from the crossing when he first saw the car; that it took two or three seconds for him to discover that the car was not moving; that when he gave the signal, the engineer put on the brakes in emergency and grabbed the whistle; that he continued to look ahead and saw the man get out of the car, walk around it, and flag once, and then begin trying to push the car off the track; that he continued to look at him until the train got almost to him, when he (the witness) crossed to the engineer's side and jumped from the cab, landing in the public highway.
The automobile, its occupants, and Simmons were struck and thrown some distance down the track, Simmons and his baby receiving injuries from which they died a few minutes later.
There were many witnesses introduced at the trial of this cause, who testified in great detail and at length as to the conditions, facts, and circumstances leading up to and surrounding this unfortunate tragedy, and only this outline of the voluminous testimony can be here given without unduly extending this opinion; but we think the facts above stated, with others that will be hereinafter referred to, are sufficient to make clear the points to be decided.
The appellant assigns as error the refusal of a peremptory instruction requested by it and the granting of several instructions requested by the appellees.
In support of the assignment that the peremptory instruction requested by it should have been given, the appellant contends: First, that there is no conflict in the testimony bearing upon the question as to whether or not the bell was ringing continuously for a distance of more than three hundred yards from the crossing; and, second, that whether the whistle was blowing or the bell ringing previous to the time the train came in sight of the crossing had no causal connection with the injury sustained by Simmons on the crossing. Upon the latter point, it is argued, in effect, that the evidence shows that Simmons was operating his car with insufficient brakes, and in going down this hill from a point two hundred ninety-five yards from the railroad crossing he placed himself in a situation which caused his car to be running at such speed, and to have gained such momentum, that it was beyond his control, and that at the moment he struck Crews' car and knocked it across the railroad track and placed his car on said track the train was not within the three hundred-yard limit on which the law requires the whistle to be blown or the bell to be rung continuously until the crossing is reached; consequently, the blowing of the whistle or the ringing of the bell for three hundred yards could not have arrested the progress of Simmons' car or prevented it from going on the track, or in any way changed the situation that placed him and his car on the track in front of the moving train, and could not have prevented the accident.
Upon the point as to whether the whistle was blown or the bell rung continuously for three hundred yards before the crossing was reached, as required by law, we think there was sufficient conflict in the testimony to require the submission of this question to the jury. Upon the second point embraced in the above-mentioned argument, it is undoubtedly true that the giving of the statutory signals would not have prevented Simmons' car from going onto the track and becoming blocked thereon. But this fact alone did not relieve the appellant of the necessity of giving such signals as a warning of the approach of a train, and does not relieve it of liability for a failure to give such signals. Travelers on a highway have a right to insist that these signals be given not only that they may keep off the track, but that they may extricate themselves and their property from a position of danger before the arrival of the train. Jones v. Railroad Co., 75 Miss. 972, 23 So. 358; Railroad Co. v. Crominarity, 86 Miss. 469, 38 So. 633; Skipwith v. Railroad Co., 95 Miss. 50, 48 So. 964; Railroad Co. v. Hawkins, 82 Miss. 209, 34 So. 323; Fuller v. I.C.R.R. Co., 100 Miss. 705, 56 So. 783.
In the case of Fuller v. Railroad Co., supra, in discussing the probable effect of the failure of an engineer to give a warning at the time he first might have seen the deceased, instead of giving the warning too late, the court said:
"The only warning that was given him was too late to be of any benefit whatever, as the train was upon him at the time the two short blasts of the whistle were given. `Warning in all such cases' (and Mr. Fuller under the circumstances did not forfeit his right to be warned simply because he went upon the railroad track in front of an approaching train), as was said by the supreme court of the United States in C.I. Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403, `must be reasonable and timely, but what is reasonable and timely warning may depend on many circumstances. It cannot be such if the speed of the train be so great as to render it unavailing. The explosion of a cannon may be said to be warning of the coming shot, but the velocity of the former generally outstrips the latter.' Even if the engineer had not made an effort to stop or check his train, but had contented himself with giving the alarm at the point when he did see, or could have seen by the exercise of reasonable care on his part, the catastrophe in all probability would have been averted."
If the statutory signals had been given, and the jury has found that they were not, it is entirely probable that Simmons could have removed himself and his children to a place of safety before the arrival of the train at the crossing. In the Fuller case, supra, the court said that Mr. Fuller went upon the railroad track in front of an approaching train, but that he did not for that reason forfeit his right to be warned. In the case at bar, there was no train in sight or known to be approaching when Simmons went upon the track on a public highway, and if the customary signal had been given, he might have avoided the dangerous situation in which he was entrapped. We think, therefore, the peremptory instruction was properly refused.
The appellant assigns as error the granting of an instruction which reads as follows:
"The court instructs the jury for the plaintiffs that it is the duty of every railroad company to 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 it is the duty of the company to cause the bell 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 public highway, and the bell shall be kept ringing or the whistle shall be kept blowing until the engine has stopped or crossed over the highway; and if the jury believe from the evidence in this case that William E. Simmons was killed at a crossing on a highway on the defendant's railroad by being struck by one of its engines running on said track, and if the jury further believe that the defendant negligently failed to cause said bell to be rung and negligently failed to cause said whistle to be blown at a distance of at least three hundred yards from the place where said railroad crosses over said highway, and that as a proximate result of such failure on the part of the defendant company the said William E. Simmons was injured and killed, or if the jury believe from the evidence that the defendant railroad company was guilty of such failure, that is to say, if it negligently failed to sound the whistle as aforesaid and negligently failed to ring the bell as aforesaid, and that such failure contributed proximately to the said injury and death of the said William E. Simmons then it is the duty of the jury to find for the plaintiffs."
In the first part of this instruction, the duty imposed upon a railroad company to give crossing signals, as provided by section 4045, Code 1906 (section 7964, Hemingway's 1927 Code) is correctly stated, but the appellant complains of the use of the word "and" instead of the word "or" in the sentence reading, "if the jury further believe that the defendant negligently failed to cause said bell to be rung and negligently failed to cause the said whistle to be blown," etc. There is no merit in this contention. The use of the word "or" in this sentence would have made the instruction erroneous, for the reasons that it would then have required the railroad company to give both signals in order to free itself of fault. As written, it informs the jury that the appellant was negligent only in case it failed in its duty in both respects, and when the entire instruction is read together, it is not misleading.
The appellant next complains of an instruction granted the plaintiffs which reads as follows:
"The court instructs the jury, for the plaintiffs, that it was the duty of the defendant to so construct and maintain within the limits of its right of way a crossing that the same could be conveniently crossed, and if grades were necessary in order to bring the public road down to the level of the railroad track at the crossing, the company should have constructed such grades within the limits of its right of way as would make the crossing easy and convenient, and if the jury believe from the evidence in this case that the defendant, the Gulf Ship Island Railroad Company, negligently failed to construct and maintain the crossing at the place where Mr. Simmons was killed with proper and easy grades so that said crossing could be conveniently crossed, and if the jury further believe from the evidence that William E. Simmons, the husband of the plaintiff, Lucille Simmons and the father of the plaintiff William E. Simmons, Jr., was a traveler upon this road and at this crossing, and that the defendant's trains ran against him and struck him while on said crossing and that this wounded him and caused him to suffer and die, and that the proximate cause of his death was the negligent failure of the defendant to construct and maintain said crossing within the limits of its right of way with proper and easy grades, or if the jury believe from the evidence that the defendant negligently failed to construct and maintain said crossing within the limits of its right of way with proper and easy grades so that said road could be conveniently crossed, and that this failure proximately contributed to the injury and death of William E. Simmons, then it is the duty of the jury to find for the plaintiffs."
This instruction bases the right of recovery, if any, on account of the condition of the crossing, on the proposition as to whether or not the grades within the limits of the railroad's right of way were such as to make the crossing easy and convenient. Section 4053, Code 1906 (section 7903, Hemingway's 1927 Code) provides that:
"Where a railroad is constructed so as to cross a highway, and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highways, so that the railroad may be conveniently crossed, and to keep such crossings in good order."
And in the case of Railroad Company v. Sneed, 84 Miss. 252, 36 So. 261, in discussing the extent of the duty imposed upon railroad companies by this statute, the court said:
"That duty is as follows: In order that public travel may not be interfered with, nor the rights and privileges of the public in any wise curtailed, the railroad company is required to make such necessary and easy grades as will permit safe and convenient passage over its roadbed. The grade required depends, of course, upon the extent to which it has been found necessary to raise or lower the natural surface of the ground to make the crossing accord with the established grade of the railroad. Whether such grades are to be slight or great varies at each crossing with the natural obstacles which may be presented by the particular location. It is further the duty of the railroad company to see that the crossing is in such condition that the highway can be safely and conveniently used by the traveling public generally. This is the extent of the duty imposed upon railroad companies by the statute under review."
Under this statute it is not the duty of the railroad to make such grades as will make the crossing of its roadbed safe and easy under any and all circumstances, but only to make such necessary and easy grades as will permit safe and convenient passage over its roadbed by persons using reasonable care in the use thereof. The evidence is undisputed that the grade of this highway for the fifty feet from the railroad track to the edge of the right of way is a little more than seven per cent., while the grade of the first fifty feet off the right of way is practically nine per cent. The railroad company had no control over or right to determine and fix, or change, the grade of the highway of its right of way and was under no duty in that regard. The proof shows that it constructed grades within the limits of its right of way to conform to and connect with the grades of the highway as maintained by the county authorities. If the grade within the limits of the right of way had been materially lowered, there would have been created a precipitous drop in the highway at the edge of the right of way, which in itself would have constituted negligence on the part of the company, and would have violated the statutory duty to make proper and easy grades in the highway so that the railroad may be conveniently crossed.
This instruction predicated liability solely upon a negligent failure of the appellant to construct and maintain necessary and proper grades within the limits of its right of way. While one witness testified that on Federal aid highways a grade of over six per cent. was not permitted, and that the grade in the hill here in question was from twelve to fifteen per cent., it appears to be conclusively established by witnesses for the plaintiffs, who at the instance of the plaintiffs actually surveyed and measured the elevation from the track to the edge of the right of way, that such elevation was forty-four inches, or a grade of seven and one-third per cent. This grade is less than that of the highway just off the right of way to which it joined and conformed, and we do not think that under the evidence in this case liability can be predicated alone upon a failure of the appellant to make such necessary and proper grades as will permit safe and convenient passage over its roadbed. We conclude, therefore, that it was error to grant this instruction.
The appellant also complains of the following instruction granted to the plaintiffs:
"The court instructs the jury for the plaintiffs that in all actions brought for injuries where such injuries have resulted in death, the fact that the person injured may have been guilty of contributory negligence shall not bar a recovery."
There was no error in this instruction. It merely informed the jury that contributory negligence on the part of the person injured does not bar a recovery, and it did not preclude the jury from diminishing the damages "in proportion to the amount of negligence attributable to" the deceased. The appellant secured an instruction to the effect that the deceased was guilty of gross negligence in driving down onto the railroad track in the manner shown by the evidence, and that if the jury found for the plaintiffs, the amount of damages should be diminished in proportion to the amount of negligence attributable to the deceased. This instruction supplements the plaintiffs' instruction, and when the two are read together they announce the entire statutory law upon the subject as found in chapter 312, Laws of 1920 (section 516, Hemingway's 1927 Code). Railroad Co. v. Archer, 113 Miss. 158, 74 So. 135.
The appellant also complains of certain instructions authorizing the jury, if they found for the plaintiffs, to take in consideration, in assessing the damages, the mental and physical pain, if any, suffered by the deceased between the time of his injury and the time of his death. The evidence shows that Simmons' body was greatly mutilated and torn, and that he was breathing or struggling for breath immediately after the accident, but was apparently unconscious. Immediately after the train was stopped, he was placed on a stretcher, and then on the train, and the train then started for the next station; but Simmons died in a very few minutes thereafter. We have carefully examined the evidence upon this point, and we do not think it was sufficient to warrant the conclusion that the injured man was ever conscious or in condition to suffer pain after he was struck and injured, and, consequently, we think it was error to submit this issue to the jury.
For the errors herein indicated, the judgment of the court below will be reversed and the cause remanded.
Reversed and remanded.