Miss. Cent. R. Co. v. Smith

Full title: MISSISSIPPI CENT. R. CO. v. SMITH

Court: Supreme Court of Mississippi, Division B

Date published: Feb 25, 1935

173 Miss. 507 (Miss. 1935)

154 So. 533

Opinion

No. 31225.

April 30, 1934. Suggestion of Error Sustained in Part, February 25, 1935.

1. RAILROADS.

In action against railroad for injuries sustained when automobile in which plaintiff was riding collided with train at highway intersection, whether railroad was negligent held for jury.

2. RAILROADS.

Violation of statute requiring trains to sound bell or whistle on approaching highway intersection is negligence on part of railroad, and, if such negligence is proximate cause of injury, railroad is liable (Code 1930, secs. 6125, 6126).

3. CONSTITUTIONAL LAW. Railroads.

Instruction that in arriving at verdict, in action for injuries sustained when automobile in which plaintiff was riding collided with train at highway intersection, jury should not consider fact that train was engaged in interstate commerce, held not erroneous as denying railroad equal protection of law and as depriving railroad of due process.

4. NEGLIGENCE.

Mississippi law governed collision between automobile and train at highway intersection, notwithstanding train was engaged in interstate commerce.

5. RAILROADS.

Instruction that train engineer had duty to keep proper and reasonable lookout on approaching crossing held proper in action for injuries sustained when automobile in which plaintiff was riding collided with train at highway intersection.

6. RAILROADS.

Instruction describing plaintiff, who sued for injuries sustained when automobile in which she was riding collided with train at highway intersection, as passenger, held not erroneous where evidence showed that automobile was owned by plaintiff's brother-in-law and was driven by plaintiff's sister, who invited plaintiff.

APPEAL from circuit court of Adams county.

HON. R.L. CORBAN, Judge.

Action by Mrs. Mattie Rife Smith against the Mississippi Central Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

On suggestion of error, suggestion of error sustained in part, and affirmed with remittitur.

Brady, Dean Hobbs, of Brookhaven, for appellant.

Appellant was entitled to a peremptory instruction.

The great preponderance of credible evidence establishes that the bell was ringing for at least one thousand feet and the crossing whistle blown.

There is no issue that the car was operated in a grossly negligent manner.

Sims v. McIntyre, 8 S. M. 327; McQueen v. Bostwick, 12 S. M. 604; Barbee v. Reese, 60 Miss. 906; Fore v. Railway, 87 Miss. 218, 39 So. 493, 600; Clarke v. Moyse, 48 So. 721; McFadden v. Buckley, 98 Miss. 28, 53 So. 351; Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113; G. S.I.R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954.

There is no question of imputed negligence involved, but all negligence was negligence of appellee as well as of the driver.

This gross negligence was the sole proximate cause of the collision, independently of signals.

Pugh v. I.C.R.R. Co., 23 So. 356; Pietri v. L. N.R.R. Co., 152 Miss. 185, 119 So. 164; M. C.R.R. Co. v. Jobe, 69 Miss. 452, 10 So. 672; Railroad Co. v. Bennett, 127 Miss. 413, 90 So. 113; Railroad Co. v. Buford, 150 Miss. 832, 116 So. 817.

On the showing of this record there is no statutory negligence here. The prima facie statute of the state of Mississippi is not involved. All the facts are in evidence and the legal principles by which those facts are to be weighed are general, common law principles of negligence.

C.R.I. P.R.R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Scofield v. C.M. St. P. Railroad Co., 114 U.S. 615, 29 L.Ed. 224; N.P. Railroad Co. v. Freeman, 174 U.S. 389, 43 L.Ed. 1014; B. O. Railroad Co. v. Goodman, 275 U.S. 66, 72 L.Ed. 167.

Appellant, whose rails are within one state but whose connections, as shown by contract for delivery, and actual carriage of goods in interstate commerce, generally and at the time of the accident in question, make it as truly an interstate carrier, and invest it with the same rights, as any road operating in the United States, even from coast to coast. To classify it differently by approving the instruction to the jury that it should not consider the question as to whether or not the applicant was engaged in interstate commerce at the time and place when and at which the injuries complained of by appellee occurred, thereby denying it the benefit of the standard laid down by the Supreme Court of the United States, would be to take away from it a title, right, privilege and immunity enjoyed by other citizens of the United States, would deny to it the equal protection of the law, and would deprive it of its property without due process of law, all in contravention and violation of section 1, article XIV, of the amendments to the constitution of the United States.

The verdict is excessive.

Y. M.V.R.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; G.N. N.R.R. Co. v. Arrington, 107 So. 378; Bateman case, 162 Miss. 404; Vicksburg v. Scott, 168 So. 522; Galtney v. Wood, 149 Miss. 56, 63; Kennedy case, 167 Miss. 305, 314; 17 C.J. 1099; 46 So. 959.

There is no weight of evidence for appellee, there is no conflict in regard to visibility, the verdict of the jury was not based upon real evidence as to visibility, and is contrary to that which this court must accept because undisputed.

Full discussions of the admissibility of photographs as evidence appear in the following authorities:

55 A.L.R. 1343; 10 R.C.L. 1153; 22 C.J. 913; 22 Am. Eng. Encyc. of Law, 774; 35 L.R.A. 808; 51 L.R.A. (N.S.) 853.

Appellee's own testimony does most clearly and positively commit her, in the words of this court, not only to the fact that she stopped, looked, proceeded, and was struck, but, also, that she looked from about ten feet within the stop sign, proceeded at a speed of between five and ten miles per hour, and did not cease to look, at least until just before they were struck.

The engineer, S.C. King, testified that the speed of the car was fast while the speed of the train was about twenty-five miles per hour. C.Q. Smith, the fireman, likewise testified that the speed of the train was about twenty-five miles per hour.

There is no basis in the record to increase the rate of speed of the train from twenty-five miles per hour to forty-five miles per hour, nor to diminish the speed of the automobile to two and one-half or three miles per hour. To do so arbitrarily would shock every sense of justice, even though it would still not support appellee's contention.

Traveler struck by a train at a road crossing will be deemed to have seen and heard an approaching train in time to have avoided injury, if he had opportunity to do so, though he testifies that, though he looked and listened, he did not see or hear the train.

Railroad Co. v. Batsel, 140 S.W. 726; Ry. Co. v. Williams, 137 S.W. 828; Peters v. Ry. Co., 135 Ala. 533, 33 So. 332; Zibbell v. Sou. Pac. Co., 160 Cal. 237, 116 P. 513; Westerkamp v. Railroad Co., 41 Colo. 290, 92 P. 687; Harten v. Railroad Co., 18 App. Cas. 260; Johnson v. Railroad Co., 61 Ill. App. 522; Railroad Company v. Kirby, 86 Ill. App. 57; Railroad Co. v. Gallagher, 109 Ill. App.? 67; Railway Co. v. DeFrietas, 109 Ill. App. 104; Railroad Co. v. Vremeister, 112 Ill. App. 346; Railway Co. v. Hirsch, 132 Ill. App. 656; Railroad Co. v. Fraze, 150 Ind. 576, 65 A.S.R. 377, 50 N.E. 576; Railway Co. v. Baker, 104 S.W. 1182; Artz v. Railroad Co., 34 Iowa 153; Payne v. Railroad Co., 39 Iowa 523; Bloomfield v. Railway Co., 74 Iowa 607, 38 N.W. 431; Young v. Railway Co., 57 Kan. 134, 45 P. 583; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Blumenthal v. Railroad Co., 97 Me. 255, 54 A. 747; Day v. B. M.R.R., 97 Me. 528, 55 A. 420; C.R.I. P.R.R. Co. v. Houston, 95 U.S. 697; McCarthy v. Railroad Co., 90 A. 490, 54 L.R.A. (N.S.) 140; N.C. Ry. Co. v. Medairy, 86 Md. 168, 37 A. 796, 3 Am. Neg. Rep. 411; Railway Co. v. Beasley, 117 Md. 270, 83 A. 157; Carlson v. Railway Co., 296 Minn. 504, 105 N.W. 555, 113 A.S.R. 655, 4 L.R.A. (N.S.) 349; State v. Dettner, 27 S.W. 1117; Hook v. Railway Co., 162 Mo. 569, 63 S.W. 360; State v. Gurley, 70 S.W. 875; Barrie v. Co., 102 Mo. App. 87, 76 S.W. 706; Porter v. Railway Co., 199 Mo. App. 82, 97 S.W. 880; Schaub v. Railway Co., 133 Mo. App. 444, 113 S.W. 1163; Waggoner v. Railroad Co., 152 Mo. App. 173, 133 S.W. 68; Dolfini v. Railroad Co., 178 N.Y. 1, 70 N.E. 68; Fiddler v. R.R. Co., 64 App. Div. 95, 71 N.Y.S. 721; Madigan v. Railroad Co., 74 N.Y. Sup. 143, 68 App. Div. 123; Swart v. Railroad Co., 81 App. Div. 402, 80 N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1131; McKinley v. Railway Co., 86 N.Y. Sup. 461, 91 App. Div. 153; Stapp v. Railway Co., 29 N.Y. Sup. 1008, 80 Hun. 178; Belch v. Railroad Co., 36 N.Y. Sup. 56, 90 Hun. 477; Montenes v. Railway Co., 78 N.Y. Sup. 1059, 77 App. Div. 493; Golden v. Railway Co., 98 N.Y. Sup. 848, 49 Misc. 521; O'Brien v. Railroad Co., 113 N.Y. Sup. 329, 129 App. Div. 288; Railway Co. v. Elliott, 28 Ohio St. 340; Marland v. Railroad Co., 123 Pa. St. 487, 16 A. 624, 10 A.S.R. 541; Meyers v. Railroad Co., 150 Pa. 386, 24 A. 747; Urias v. Railroad Co., 152 Pa. 336, 25 A. 566; Holden v. Railroad Co., 169 Pa. 1, 32 A. 103; Railway Co. v. Wilson, 60 S.W. 438; Railway Co. v. Skinner, 119 Va. 843, 89 S.E. 887; Cawley v. Railway Co., 101 Wis. 145, 77 N.W. 179; Stafford v. R.R. Co., 110 Wis. 331, 85 N.W. 1036; Marshall v. R.R. Co., 125 Wis. 96, 103 N.W. 249; White v. Ry. Co., 147 Wis. 141, 133 N.W. 148; Railway Co. v. Smith, 40 L.R.A. 246, 86 Fed. 295, 30 C.C.A. 58; Railway Co. v. Andrews, 130 Fed. 65, 64 C.C.A. 399; Waters-Pierce Oil Co. v. Van Elderen, 137 Fed. 557, 70 C.C.A. 255; Railway Co. v. Collier, 157 Fed. 347; Railroad Co. v. Cundieff, 171 Fed. 319, 96 C.C.A. 211; Railroad Co. v. Hurlburt, 221 Fed. 907, 137 C.C.A. 477; Am. Car Foundry Co. v. Kinderman, 216 Fed. 499, 132 C.C.A. 577; Hickey v. Railroad Corp., 8 F.2d 128; Michelson v. Nebraska, etc., Co., 63 F.2d 597.

Not even appellee has disputed or will dispute that the object of the statute is to give knowledge of the approach of the train, and when such knowledge is otherwise had, of course the statute does not apply. In such case, the blowing of a whistle or the ringing of a bell would not add one iota of knowledge to that already possessed, except where such extraordinary circumstances obtain as were present in the McGee case. This is only the doctrine of proximate cause. One may, in violation of a statute, and with the grossest negligence, discharge a fire-arm upon a crowded street, or recklessly run a car at high speed through heavy traffic, and if no one is injured, no civil action will lie. That is elementary.

Bufkin v. R.R. Co., 161 Miss. 594, 137 So. 517; Pietri v. Railroad Co., 152 Miss. 185, 119 So. 164; C.R.I. P.R.R. Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542; Gundry v. Railway Co., 286 P. 718; Railway Co. v. Judah, 65 Kansas 274, 70 P. 346; Hutchinson v. Railway Co., 161 Mo. 246, 61 S.W. 635, 852, 195 Mo. 546, 93 S.W. 931; Kilcummings v. Ry. Co., 185 Ill. App. 370; Gosa v. Ry. Co., 67 S.C. 347, 45 S.E. 810; Hickey v. R.R. Corp., 8 F.2d 128; Railway Co. v. Elliott, 28 Ohio State 340; Pakalinsky v. Railroad Co., 84 N.Y. 424; Daniels v. Transit Co., 125 N.Y. 407, 26 N.E. 466; Haben v. Electric Co., 22 App. Div. 426, 48 N.Y.S. 38; Millinan v. Ry. Co., 109 App. Div. 139, 95 N YS. 1097; Raymer v. Railroad Co., 204 App. Div. 135, 198 N YS. 261.

Where a matter of measurement is important, the "guesses" or "belief" of a witness cannot be accepted as against the sworn statements of competent witnesses who give the results of actual measurements.

McIntyre v. Pittsburgh, 238 Pa. 524, 86 A. 300; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Casey v. Ry. Co., 60 Mont. 56, 198 P. 141; Lalor v. City of New York, 208 N.Y. 431, 102 N.E. 558, Ann. Cas. 1916E, 572; Mann v. Phoenix, etc., Co., 151 Mo. App. 586, 132 S.W. 19; Underwood v. West, 187 S.W. 84; Jones v. Detroit, 171 Mich. 608, 137 N.W. 513; City of Louisville v. Dahl, 170 Ky. 281, 185 S.W. 1127; Kelsay v. Ry. Co., 30 S.W. 339.

The list of cases which treat of the admissibility of photographs is almost endless and furnishes an interesting study of how, since the first cases were decided, the development of the knowledge of the "taking pictures" has spread from the studios into almost every household, and is reflected in the greater familiarity of the courts with their value in depicting the incidents of life and scenes of nature. Illustrative of this attitude is the line of decisions holding that it is not even necessary to make them admissible that the person who took them should be an expert or should even be present to identify, provided that there are other witnesses who can look at the photographs and say that they accurately portray the object or scene under consideration.

Diller v. Power Co., 162 Cal. 531, 123 P. 359, Ann. Cas. 1913d 908; Thompson v. Railway Co., 106 S.W. 910; 51 L.R.A. (N.S.) 846.

Engle Laub and Kennedy Geisenberger, all of Natchez, for appellee.

The train in question was not an interstate train in that it did not run out of the state of Mississippi.

A statute raising a presumption that failure of a railroad company to give the prescribed crossing signals is the proximate cause of a crossing accident does not deprive the railroad companies of the equal protection of the laws.

Atlantic Coast Line R.R. Co. v. Ford, 77 L.Ed. 457, 287 U.S. 502.

Police regulations relating to the internal trade and affairs of the states are within local state control.

Hammer v. Dagenhart, 247 U.S. 257, 62 L.Ed. 1101; I.C.R.R. Co. v. Public Utilities Commission, 245 U.S. 493, 62 L.Ed. 425.

Appellant cannot from the facts in this case make the occasion a joint adventure, as they inferentially attempted to do in the trial of the case.

Columbus G.R. Co. v. Lee, 115 So. 782, 149 Miss. 543; 2 Blashfield on Automobile Law 1149.

The verdict was far below the amount which might have been given and yet sustained.

The jury was the proper judge of the amount of damage done through the negligence of the appellant.

There is a presumption, well recognized in the law, that stands as a witness for the truth of the statement by the appellee that neither she nor her sister heard or saw any train approaching. It is the well known presumption that arises from the instinct of self-preservation.

1 Moore on Facts, sec. 413, page 391, sec. 423, page 399, and sec. 554; Gulf Ship Island R.R. Co. v. Simmons, 121 So. 144, 153 Miss. 327.

In this case we know the fact to be that no train was seen and no whistle heard and that when the car got on the track it was struck by the train.

The jury should be left to judge from these facts as well as all the other facts in the case.

Not only did the jury have a view of the premises, but the appellant was permitted to stage a demonstration and to place the automobile where the appellant contended the automobile was and to place the train where the appellant contended the train was and to place the jurors at points where they could observe conditions and was then permitted to run a train up and down the track, under conditions represented by the appellant to be the actual conditions at the time of the accident.

The appellant asked for this privilege and it was accorded, and we say the appellant cannot be heard to dispute or question the result reached by the jury after viewing this actual demonstration.

National Box Co. v. Bradley, 154 So. 724, 171 Miss. 15.

Travelers on highways have the right to insist that statutory train signals be given at a crossing, not only that they may be warned thereby, but that in the event they are in a position of danger they may have an opportunity to save themselves.

G. S.I.R.R. Co. v. Simmon, 121 So. 144, 153 Miss. 327.

The record in this case discloses that the testimony of at least one witness is to the effect that the car in question was brought to a stop just within the stop sign, which stop sign was fifty feet from the railroad crossing. If the car in question was brought to a stop at this point and from there on proceeded in low gear, as the proof shows in all probability it did, the car being found in low gear after the wreck, then would not the sounding of the whistle or the ringing of the bell for a distance of nine hundred feet, as required by the statute, have given auditory warning of the approach of the train? And is this not particularly true if the evidence for the appellant, the defendant below, is taken to be true, that is, the evidence of its expert engineer, Babbit, that this train could be seen from the crossing for a distance of twelve hundred feet.

A. V.R.R. Co. v. McGee, 78 So. 296, 117 Miss. 370; G.M. N.R.R. Co. v. Seymour, 114 So. 35, 148 Miss. 456; Columbus Greenville R. Co. v. Lee, 115 So. 782, 149 Miss. 543; Skipworth v. M. O.R.R. Co., 48 So. 964, 95 Miss. 50; L. N.R.R. Co. v. Crominarity, 86 Miss. 476, 38 So. 633.

We respectfully submit that the instant case now before this court measures up to and meets the middle ground view which our courts have adopted in Kress v. Sharp; that is to say, there was substantial testimony delivered by sworn witnesses to the effect that this train could not be seen when approaching this highway crossing when a car was at or just within the stop sign.

Bonelli v. Branciere, 127 Miss. 556, 90 So. 245; Cotton Mill Products Co. v. Oliver, 153 Miss. 362, 121 So. 111; 1 Thompson on Trials (2 Ed.), pars. 901, 902; City of Topeka v. Martineau, 42 Kan. 387, 22 P. 419, 5 L.R.A. 775; Shular v. State, 105 Ind. 289, 295, 4 N.E. 870; Louisville N.A. C.R. Co. v. Wood, 113 Ind. 544, 550, 14 N.E. 5572; Davis v. Jenny, 1 Metcalfe 222; Shepherd v. Camden, 82 Me. 535, 20 A. 91; Omaha R.R. Co. v. Walker, 17 Neb. 432, 23 N.W. 348.

There is no sense in the conclusion that the knowledge which the jurors acquire by the view is not evidence in the case.

Thompson on Trials (2 Ed.), page 743, par. 893; Neilson v. Chicago R.R. Co., 58 Wis. 517; Chicago R.R. Co. v. Brewing, 174 Ill. 547, 51 N.E. 572; Seattle R.R. Co. v. Roeder, 31 Wn. 244, 70 P. 498.

It was well within the province of the jury to say as to what weight as evidence they gave the photographs, because the weight of the photographs depended altogether upon the location of the camera at the time the photographs were snapped.

The jury is bound to conclude that the cameraman is incorrect as to the place he stated the camera was when it was snapped.

M. O.R.R. Co. v. Bryant, 159 Miss. 529, 132 So. 539; Haven v. Snyder, 176 N.E. 149.

The weight given to the photographs in question as evidence depending upon the character of the thing shown as well as the skill of the person taking the photograph, gave the jury the right to say in the instant case here that the camera had not been placed at the proper point and did not depict the situation as testified to by plaintiff and her witnesses.

I.C.R.R. Co. v. Emerson, 91 Miss. 230, 44 So. 928; 1 Moore on Facts, "Weight of Evidence," page 327, para. 333; 2 Moore on Facts, page 1359, para. 1212, and page 1363, para. 1220; Baustian v. Young et al., 152 Mo. 317, 53 S.W. 921, 75 A.S.R. 462; Kirpatrick v. Met. St. Ry. Co., 211 Mo. 68, 82, 83, 109 S.W. 682, 686; Lewis v. City of Spokane, 215 P. 36, 124 Wn. 684; Coleman v. Norfolk Western R.R. Co., 131 S.E. 563, 100 W. Va. 679; Lake Erie v. Wilson, 59 N.E. 573, 189 Ill. 89; Higgs v. Minneapolis R.R. Co., 114 N.W. 722, 16 N.D. 446, 15 L.R.A. (N.S.) 1162, 15 Ann. Cas. 97; Puget Sound Elec. Ry. Co. v. Benson, 253 Fed. 710, 165 C.C.A. 304.

The question as to what weight should be given to a photograph after its verification and admission in evidence is a matter for the jury.

Wehterell v. Hollister, 48 A. 826, 73 Conn. 622; Mattson v. Maryland Casualty Co., 279 P. 1045; Pace v. Cochran, 144 Ga. 261, 86 S.E. 934; Higgs v. Minneapolis, etc., R.R. Co., 16 N.D. 446, 114 N.W. 722, 15 L.R.A. (N.S.) 1162, 15 Ann. Cas. 97; Fuller v. Robinson, 230 Mo. 22, 130 S.W. 343, Ann. Cas. 1912A 938; Baustian v. Young, 152 Mo. l.c. 324, 535 S.W. 921, 922, 75 Am. St. Rep. 462; Wigmore on Evidence, 790; 2 Elliott on Evidence, para. 1263; Beardslee v. Columbia Twp., 188 Pa. 496, 41 A. 617, 68 Am. St. Rep. 883; Davidson v. St. Louis R.R. Co., 164 Mo. App. 701, 148 S.W. 406, 409; 3 Jones on Evidence, page 2580, par. 1419, page 3212, par. 1749, and page 3215, par. 1951; Stotelmeyer v. Chicago M. St. P.R. Co., 127 N.W. 205, 148 Iowa 278; St. Louis S.F.R. Co. v. Dale, 128 P. 137, 36 Okla. 114; Virginian Ry. Co. v. Bell, 87 S.E. 570, 118 Va. 492; Steinke v. City of Oshkosh, 149 N.W. 715, 159 Wis. 124; Sellers v. State, 93 Ark. 113, 124 S.W. 770.

Photographs of the scene of the grade crossing accident are not conclusive as to the extent of view of person injured, where the conditions of light were not the same when they were taken as when the accident occurred.

Baxter v. Philadelphia Reading Ry., 264 Pa. 467, 107 A. 881, 9 A.L.R. 504; 10 R.C.L., pages 1157, 1160; Higgs v. Minneapolis, St. Paul, etc., Ry., 114 N.W. 722, 15 L.R.A. (N.S.) 1162; In re: Jessup, 81 Cal. 408, 6 L.R.A. 594, 21 P. 976, 22 P. 742, 1028; Scott v. New Orleans, 21 C.C.A. 402, 41 U.S. App. 498, 75 Fed. 373; 15 L.R.A. (N.S.) 1162; Surratt, Admr. v. Rovinson, 135 A. 838, 50 A.L.R. 280; Howard v. Baltimore Ohio R.R. Co., 68 A. 848, 219 Penn. 358.

There is no negligence per se in all cases for a traveler upon a public road or street on approaching a railroad crossing not to stop, as well as look and listen before attempting to cross the track. Under some circumstances, whether one has been negligent in failing to stop may be a question of law to be decided by the court, but generally it is presented as a mixed question of law and fact to be submitted to the jury.

Bonar v. Baltimore Ohio R. Co., 113 S.E. 766, 91 W. Va. 462; Norfolk Western Railroad Co. v. Hardy, 148 S.E. 839, 152 Va. 783; 34 Negligence Compensation Cases Annotated, Calahan Company, page 21; Atlantic Coast Line R. Co. v. Watkins, 97 Fla. 350, 121 So. 95; Yazoo Miss. Valley R.R. Co. v. Williams, 74 So. 835, 114 Miss. 236; Lefere v. Krohn et al., 90 So. 12, 127 Miss. 305; Kimball v. Friends, Admx., 27 S.E. 901; Seattle M.R.R. Co. v. Roeder et al., 70 P. 498.

Watkins Eager, of Jackson, for appellee.

The verdict is not based upon evidence so unbelievable as to permit an appellate court to disturb the same.

I.C.R. Co. v. Smith, 59 So. 87, 102 Miss. 276; Mardis v. Ry. Co., 76 So. 640, 115 Miss. 734; St. L., etc., R. Co. v. Rowles, 64 So. 968; N.O., etc., R. Co. v. Holsomback, 151 So. 720; Gillespie v. Doty, 135 So. 211, 160 Miss. 792; Y. M.V.R. Co. v. Pittman, 153 So. 382; M.P. L. Co. v. Smith, 153 So. 376; Woolworth Co. v. Wolking, 100 So. 3; L. N.R. Co. v. Jones, 98 So. 230; M. W.R. Co. v. Bennett, 90 So. 113; Davis v. Temple, 91 So. 689; N.O., etc., R. Co. v. Ward, 96 So. 401; I.C.R. Co. v. Schultz, 39 So. 1005; G.M. N.R. Co. v. Seymour, 114 So. 35.

The photographs are inadmissible.

Nunally v. Muth, 242 S.W. 622; Fore v. State, 75 Miss. 727, 23 So. 710; Brett v. State, 94 Miss. 669, 47 So. 781; Babb v. Oxford Paper Co., 59 A. 290; Wyldes v. Patterson, 153 N.W. 630; Grant v. R.R. Co., 176 Ill. App. 292; Paden v. Furniture Co., 220 Ill. App. 534; Burns v. Saylers, 270 Ill. App. 46; 22 C.J., Evidence, 919-922; Stone v. N.P.R. Co., 151 N.W. 36; Stone v. C. Ry. Co., 53 F.2d 813; Ford v. Mo. P.R. Co., 271 S.W. 967; Gose v. True, 198 N.W. 528; Stewart v. St. P. Ry. Co., 80 N.W. 855; 2 Wigmore on Evidence (2 Ed.), par. 792.

Photographs are not type of evidence that can overthrow conflicting evidence to the contrary.

M. O.R. Co. v. Bryant, 132 So. 539; 2 Wigmore on Evidence, sec. 792; Schaefer v. Ark. V.R. Co., 179 P. 523; Gregorie v. Northwestern R. Co., 273 P. 76; Woodward v. W.R. Co., 133 S.W. 677; Perkins v. Director of Railroads, 112 S.E. 839; Lunzer v. P.R. Co., 145 A. 907; Scalet v. Tel. Co., 140 A. 141; Nieni v. B.R. Co., 173 A. 361.

Measurements are not conclusive when not of fixed permanent objects.

1 Moore on Facts, secs. 414 and 415, page 392; Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650; Mann v. Phoenix Brick Co., 132 S.W. 19; Jones v. Detroit, 137 N.W. 513; Pa. R. Co. v. Cutting, 5 F.2d 936.

For effect of view taken by jury see:

64 C.J. 1024-25; Am. States Co. v. Ry. Co., 120 N.W. 844; C., etc., R. Co. v. Parsons, 32 P. 1083; Husbands v. P. I.R. Co., 216 S.W. 840; Cotton Mills Products Co. v. Oliver, 121 So. 111; Kress Co. v. Sharp, 126 So. 650; Wyldes v. Patterson, 153 N.W. 630; McGowan v. Tayman, 132 S.E. 316; Vaca v. So. P. Co., 267 P. 346.

Concurring cause and contributory negligence was for the jury.

Sections 511, 512, Code of 1930; So. Ry. Co. v. Murray, 44 So. 785, 91 Miss. 546; Fuller v. I.C.R.R. Co., 56 So. 783, 100 Miss. 705; Y. M.V.R. Co. v. Williams, 74 So. 835; M. O.R. Co. v. Campbell, 75 So. 554; A. V.R. Co. v. McGee, 78 So. 296, 117 Miss. 370; G. S.I.R. Co. v. Saucier, 104 So. 180; G. S.I.R. Co. v. Simmons, 117 So. 345, 121 Miss. 144; N.O., etc., R. Co. v. Hegwood, 124 So. 66, 155 Miss. 104; M.C.R. Co. v. Alexander, 152 So. 653.

Argued orally by T.H. Brady, Sr., and T.P. Brady, for appellant, and by S.B. Laub, W.A. Geisenberger, W.H. Watkins and C.F. Engle, for appellee.

Anderson, J., delivered the opinion of the court.

Appellee brought this action against appellant in the circuit court of Adams county to recover damages for an injury received by her as the result of a collision between an automobile in which she was riding and one of appellant's freight trains. The trial resulted in a verdict and judgment for appellee in the sum of eleven thousand dollars, from which judgment appellant prosecutes this appeal.

Appellant contends that it was entitled to a directed verdict because there was not sufficient evidence to go to the jury on the issue of liability, and if mistaken in that contention that the verdict was against the great preponderance of the evidence, and upon that ground it was entitled to a new trial, and if mistaken in both of these contentions that the judgment should be reversed because the court, on its instructions for appellee applying the "whistle and bell statute" (section 6125, Code of 1930), violated the due process and equal protection clauses of the Federal Constitution, and because the court erred in giving certain other instructions for appellee.

The collision and injury took place in Adams county near Natchez where the Liberty public road crosses appellant's railroad. Appellee, with her sister, Mrs. Thompson, and their mother, and a little girl about ten years of age, were riding in a coupe automobile; their mission was one of pleasure. The car was owned by Mr. Thompson, the husband of Mrs. Thompson. It was being driven by Mrs. Thompson; the mother sat next to the driver, and appellee on their right with the little girl in her lap. The collision demolished the automobile and killed Mrs. Thompson and the mother and severely injured appellee. The little girl did not testify in the case. Appellee testified that in approaching the crossing the car was stopped just within the stop signal sign; that they looked and listened for an approaching train, and that she neither saw nor heard one; that Mrs. Thompson thereupon undertook to drive across the railroad and in doing so was struck by one of appellant's westbound freight trains running at a high rate of speed; that when the train appeared in sight it was impossible for the car to clear the crossing; and that neither the bell was ringing nor the whistle sounding on the approaching train. Appellee's testimony as to the speed of the train and appellant's failure to comply with the "whistle and bell statute" was corroborated by other witnesses, who saw and heard the train. On the other hand, several witnesses testified for appellant that the bell and whistle statute was complied with, and the engineer and fireman testified, in addition, that they were both on the lookout and when the automobile appeared on the crossing they did everything possible to prevent the collision, and that it was unavoidable.

On the trial the jury were taken to the scene of the collision. In their presence appellant had one of its trains to run several times over the Liberty road crossing. The jury were thereby furnished first hand evidence of the topography of the crossing and its surroundings.

We are of the opinion that this is not a case for a directed verdict for appellant, nor is it a case in which appellant is entitled to a new trial because the verdict was against the great preponderance of the evidence. If the jury had not viewed the locus in quo, we should have been much inclined to grant a new trial upon the ground of the weakness of appellee's evidence. The view furnished the jury an opportunity of solving conflicts in some of the very material evidence.

The freight train in question was engaged in both intrastate and interstate commerce. Appellee was given instructions applying the "whistle and bell statute," section 6125, Code of 1930, which is in this language: "Every railroad company shall cause each locomotive engine run by it to be provided with a bell of at least thirty pounds weight, and 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 municipal street, and the bell shall be kept ringing or the whistle shall be kept blowing continuously until said crossing is passed." Section 6126, Code of 1930, makes a violation of the above statute a misdemeanor, and our court, in construing the statute, holds that its violation is negligence on the part of the railroad company, and if such negligence is the proximate cause of the injury the company is liable. Louisville N.R. Co. v. Crominarity, 86 Miss. 464, 38 So. 633; Southern R. Co. v. Murray, 91 Miss. 546, 44 So. 785; Skipwith v. Mobile Ohio R. Co., 95 Miss. 50, 48 So. 964. In these instructions that construction of the statute was properly put to the jury.

Appellee was also given an instruction that in arriving at their verdict the jury should not consider the fact that the train was engaged in interstate commerce. Appellant argues that by these instructions it was denied the equal protection of the law and deprived of due process. There is no merit in either of these contentions. Atlantic Coast Line R. Co. v. Ford, 287 U.S. 502, 53 S.Ct. 249, 77 L.Ed. 457. In that case the court had under consideration a South Carolina statute requiring crossing signals, and creating a presumption of negligence for failure to comply with the statute. That statute required the bell to be rung and the whistle to be sounded at the distance of at least five hundred yards from the crossing and the bell kept ringing or the whistle sounding until the engine had crossed the highway. The court held that the statute violated neither the due process, the equal protection, nor the commerce clause of the Federal Constitution.

Those questions out of the way, the applicable principles of the law of this state govern, notwithstanding the train was engaged in interstate commerce. Under our decisions construing the statute there was no error in the instructions given appellee applying the statute to this case.

Appellant complains of an instruction for appellee telling the jury that it was the duty of the engineer in charge of its train "to keep a proper and reasonable lookout on approaching the crossing." This contention is without merit. Mobile Ohio R. Co. v. Johnson, 165 Miss. 397, 141 So. 581; Mobile Ohio R. Co. v. Bryant, 159 Miss. 528, 132 So. 539. It was held in those cases that an engineer in approaching a public crossing was required to keep a lookout within the right of way.

An instruction was given appellee in which she was described as a passenger in the automobile. The evidence showed without conflict, as above stated, that Mrs. Thompson was driving the car; that the car belonged to her husband; and that appellee was riding with her by invitation. In Columbus Greenville R. Co. v. Lee, 149 Miss. 543, 115 So. 782, the court held that a guest in, or an occupant of, an automobile being driven by another, over whom he has no control, is not chargeable with the negligence of the driver, but only with his own neglect in not remonstrating with the driver against doing a negligent act when the danger therefrom is, or should be, apparent to him. The previous decisions of our court so holding are cited in the opinion in that case.

We do not think the other assignments of error are of sufficient merit to require a discussion.

Affirmed.

Per Curiam opinion of the court on suggestion of error.

This case has involved serious difficulties as to a proper decision and we have taken a course in that regard commensurate with the difficulties encountered. As indicated in the original opinion, the evidence as a whole is unsatisfactory; but taking all of it as presenting an intelligible setting of the situation and thereupon considering particularly the testimony of the engineer, introduced and vouched for by appellant, that although he was keeping a strict lookout ahead, he did not see the automobile until the locomotive was within sixty feet of the crossing, and this taken in connection with the potent fact that the jury was taken to the scene and made an actual view thereof, we have concluded that, for the reasons stated in the original opinion ( 154 So. 533), we are not authorized to reverse on the issue of liability.

We have concluded, however, that the amount of the verdict is out of line with the verdicts that have been rendered by juries throughout the state for the last three or four years in cases of personal injury, similar in seriousness to the present case, when taken in connection with the remittiturs ordered in a few cases; and that the verdict is excessive to the extent of four thousand dollars. If the appellee will enter a remuttitur in that amount, the judgment will be affirmed for seven thousand dollars; otherwise, it will be reversed, in so far as it fixes the amount to be recovered, and the cause remanded for trial on the question of the amount of damages only.

Suggestion of error sustained in part, and affirmed with remittitur.