Opinion
No. 35214.
January 18, 1943. Suggestion of Error Overruled February 15, 1943.
1. RAILROADS.
A railroad may leave a train standing over a public crossing during the day or at night without any light or warning to traveling public, since presence of railroad cars on crossing is all the warning traveling public is entitled to unless conditions are unusual.
2. RAILROADS.
Where public crossing was blocked by a railroad box car during a fog and crossing was unguarded, under rule that in absence of unusual conditions presence of box car on crossing was only warning necessary to traveling public and statutes relating to power of lights on automobiles and requiring motorist to slow up when approaching and crossing an intersection when special hazard exists, in absence of unusual circumstances there could be no recovery for death of truck driver resulting from collision with box car (Code 1930, sec. 5575; Laws 1938, chap. 200, sec. 104(a, b), 105(a)).
3. NEGLIGENCE.
In action for death of truck driver resulting from collision of truck with box car blocking railroad crossing during a heavy fog, where sole proximate cause of truck driver's death was truck driver's own negligence, comparative negligence statute had no application.
APPEAL from the circuit court of Perry county, HON. F. BURKITT COLLINS, Judge.
Welch Cooper, of Laurel, H.D. Young, of New Augusta, and Hannah, Simrall Foote, of Hattiesburg, for appellant.
The outstanding issue in the case is whether or not the train crew knew or in the exercise of reasonable care should have known that one driving a truck at a reasonable rate of speed with proper equipment on the truck would not be able to see a forty-foot box car. This involved the degree of visibility at the crossing and nothing else. Appellees' own witnesses disclose a visibility of from 40 to a 100 feet or more. The witnesses for the appellants establish a visibility of 200 to 250 yards.
The employees of the appellant as reasonable men had the right to assume that, under all the circumstances shown by this record, the occupation of the crossing by these box cars would be visible to a person who was driving along the street in an automobile properly equipped with lights, and who was keeping a constant lookout ahead, in time to allow such person to stop before coming into collision with the cars, and consequently that the proof in this case fails to show negligence on the part of the appellant.
Gulf, M. N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750.
See also Gulf, M. N.R. Co. v. Addkison, 189 Miss. 301, 194 So. 593; Gulf, M. N.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Spilman v. Gulf S.I.R. Co., 173 Miss. 725, 163 So. 445; Summerford v. Illinois Central R. Co. (Miss.), 196 So. 264.
Under the laws of the State of Mississippi it is the duty of a person operating a motor vehicle to keep a constant lookout ahead and to drive his car within the limits of speed fixed by law so as to be able to bring the car to a stop within the range of his vision.
Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Section 51 of Chapter 200 of the Laws of 1938, appearing as Section 1434, on page 1943, of the Supplement to the Mississippi Code of 1930, Section (c).
The deceased knew that the crossing was there. He had crossed it time and time again. It was his duty under the law to stop before he went upon the crossing. And certainly the members of the crew had a right to assume that the driver would comply with the positive provisions of the law and bring his vehicle to a stop. They had a right to assume that his truck would be carefully operated at a speed enabling him to stop. They had a right to assume that his vehicle would be properly equipped. They had a right to assume that he would not overload his car.
Dolan v. Bremner, 220 Iowa, 1143, 263 N.W. 798.
In the absence of statute, or special conditions of hazard to motorists, there is no duty on the railway company to provide special warning or safeguards to motorists, either in the day or nighttime, to prevent collisions with cars standing on such crossing. The law requires motorcars to be equipped with adequate headlights and that they be not run at such speed that an obstruction, such as a freight car, cannot be discovered in time to come to a stop. Others are not required to take precautions against one's negligence. Otherwise stated, one may assume that another will take ordinary care.
Southern Ry. Co. v. Lambert, 230 Ala. 162, 160 So. 262.
The negligence of the plaintiff was the sole proximate cause of the accident.
Ulmer v. Pistole, 115 Miss. 485, 76 So. 522; Doty v. Southern Pacific Co. (Ariz.), 129 P.2d 991; Sisson v. Southern Ry. Co., 68 F.2d 403.
See also Yardley v. R.R. Co. (Vt.), 153 A. 195; Irwin v. Southern Pacific R. Co., 163 Or. 72, 95 P.2d 62.
C.C. Smith, of Richton, and Currie Currie, of Hattiesburg, for appellee.
The theory of the railroad company is that the railroad company and its agents, servants and employees had the absolute right under the law to make such use of said public highway crossing as they themselves deemed necessary in the operation of said engine, cars and train, and that they had the absolute right under the law in the operation of such engine, cars and train to block and leave said railroad car standing still on said railroad track in said public highway, enveloped in such dense fog, as long as they themselves pleased in the course of the operation of said train and the conduct of said business, without any notice, warning or signal whatever of any nature, kind or character to the deceased or the traveling public on said highway, and regardless of any negligence on their own part in so leaving said car standing on said railroad track across said highway in such dense fog, on the theory that the law itself made it the duty of the deceased and the traveling public on said highway to see such car on said railroad track notwithstanding such dense fog, and on the contrary that they, the agents, servants and employees of said railroad company, had the absolute right under the law to assume that the deceased or any other member of the traveling public on said highway would see such car, and notwithstanding the density of the fog and notwithstanding the fact that they had put out no notices, no warnings and no signals of any sort to give the deceased or the traveling public any notice or warning whatever of the presence of such car on said railroad track in said public crossing in such fog.
We deny that there is any such law written in a case like this upholding such theory.
The very reason why the railroad company itself made and adopted the rule which was introduced and literally quoted in this record, dealing with such a situation and requiring the giving of the special notices and warnings and signals as testified to by Robert L. Roper, the conductor of the railroad company then and there in charge, control, management and operation of its said engine, cars and train, was because the railroad company knew that no traveler could be expected to see such an obstruction on the railroad track across a public highway in a dense fog, and because the railroad company knew that it and its agents, servants and employees, in case of injury or death under such circumstances, would have no right to assume or act upon the assumption, in so placing and leaving such car on the railroad track across the highway in a dense fog, that any member of the traveling public would see it in time to avoid running into or colliding with it.
The railroad company's own rule as quoted in the railroad company's own testimony shows that they had absolutely no right to rely upon any such assumption and would have no right to make any such defense in a case like this where its own agents, servants and employees in charge, control, management and operation of its own engine, cars and train negligently, in violation of law and in violation of the railroad company's own rule, left this freight car standing still on the railroad track across this public highway, enveloped in a dense fog, a fog so dense that the proof in the case shows that it made it impossible for the deceased or any other traveler on said highway, by motor vehicle equipped with the ordinary motor vehicle lights, to see said car until he had gotten within 15 or 20 feet of it and within close and dangerous proximity of it. Such is the case presented by this record and there is no law, no decision, no statute in the State of Mississippi under which the appellees can be legally denied the right of recovery as a matter of law.
In further answer to the theory and contention of the railroad company, we assert that there are a few fundamental principles of law which ought to be remembered and borne in mind as we go along discussing the law of this case.
First: That while the point or place in this public highway where the railroad track crossed it was a public highway crossing, the crossing itself remained a public highway or a part of a public highway nevertheless.
Second: That the public and the railroad company both had the lawful right to use this public highway crossing, for the purpose of public travel and the operation of trains, but neither had the right to make grossly negligent or criminal use of such public crossing.
Third: That every person must so use his own property as not to injure that of his neighbor. That applies to railroad companies as well as any and all other property owners.
Fourth: That reparation must be made by person doing lawful thing, if damage thereby befall another, and which the former could have avoided by reasonable and proper care. This applies to a railroad company in the operation of its engines, cars and trains at a public highway crossing.
Fifth: As a general rule, action is maintainable in all cases where damage accrues to another, by the negligence or improper conduct of a person in the exercise of his particular trade or business.
Sixth: That right of railroad company to free, exclusive, unmolested use of its railroad is nothing more than right of every other land proprietor in the actual occupancy and use of his lands, and does not exempt it from the duty enjoined by law upon every person so to use his own property as not to do any unnecessary and unavoidable injury to another.
Seventh: That liability to make reparation for injury caused by negligence seems to rest upon original moral duty enjoined upon every person so to conduct himself, or exercise his own rights, as not to injure another, and not upon the consideration of any reciprocal obligation.
Eighth: That mere fact that one person is in wrong does not in itself discharge another from the observance of due and proper care toward him, or the duty of so exercising his own rights as not to injure him unnecessarily. Kerwhacker v. Cleveland, etc., R. Co., 3 Ohio State 172, 62 Am. Dec. 246.
The foregoing principles and canons of the law apply to the principles of this case and are unanswerable, and under them the railroad company is clearly liable to the appellees under the particular facts and circumstances on which their case is based, and under the verdict of the jury.
We could not think that this court would be willing in the solemn discharge of its appellate jurisdiction to assume the responsibility and authority of saying judicially, and as a matter of law, that it was in fact necessary to so block said highway crossing in so dense and impenetrable a fog, by placing, uncoupling and leaving such railroad car standing on the main track across said public highway in such dense fog, and particularly without any lights on such car and without any notice, warnings or signals of any nature, kind or character whatever to the deceased or the traveling public on said highway.
Railroad companies owe duties and obligations to the traveling public on the public highways and at public highway crossings the same as other persons.
See Keith v. Yazoo M.V.R. Co., 168 Miss. 519, 151 So. 916; 45 C.J. 645, 647, 859.
A railroad setting a trap for a traveler at an unlighted, unguarded crossing, disregarding signals, precautions, and safety ordinances, cannot plead contributory negligence of a traveler suffering injuries.
Draiss v. Payne, 158 La. 652, 104 So. 487.
A railway has the right to a clear track only when operating its trains within the legal limitations.
Alabama V.R. Co. v. Lowe, 73 Miss. 203, 19 So. 96.
Railroad crossing will be treated as obstructed, where train could not have been seen more than 150 feet away on account of fog.
Malone v. St. Louis-San Francisco R. Co., 285 S.W. 123.
The railroad company and its agents, servants and employees in charge, control, management and operation of its engine, cars and trains, were guilty of gross negligence in so blocking this public highway crossing with a freight car in a dense fog, with no light on it, and without resorting to any special means, measures, signs, warnings or notices to the deceased or the traveling public on said highway of the extraordinary, unusual and unnecessary danger thereby created.
Terry v. New Orleans Great Northern R. Co., 103 Miss. 679, 60 So. 729; Jarrell v. New Orleans N.E.R. Co., 109 Miss. 49, 67 So. 659; Atlantic Coast Line R. Co. v. Church, 120 Va. 725; Louisville N.R. Co. v. Howser, 201 Ky. 548; Chicago, I. L.R. Co. v. Turner, Admx., 33 Ind. App. 264; Houren v. Chicago, Milwaukee St. Paul Ry. Co., 236 Ill. 620.
See also Dudley v. Wabash P.R. Co., 167 Mo. App. 647; Grand Trunk Western R. Co. v. Reynolds, 90 N.E. 84; Grand Trunk Ry. Co. v. Ives, 144 U.S. 417, 36 L.Ed. 485; Ward v. Salt Lake City, 151 P. 905; Martin Rozycki v. Yantic Grain Products Co., 99 Conn. 711.
In each of the following cases of injury caused by a railroad train, the visibility of which was affected by the weather conditions prevailing at the time of the accident, it was held that the issues of negligence and contributory negligence were for the jury, and a verdict for the plaintiff was affirmed.
Pennsylvania R. Co. v. Miller, 39 C.C.A. 642, 99 F. 529; O'Hara v. Central R. Co., 106 C.C.A. 177, 183 F. 739; Lehtohner v. New York, N.H. H.R. Co., 110 C.C.A. 129, 188 F. 59; Smith v. Chicago, P. St. L.R. Co., 236 Ill. 369; Coulter v. Illinois C.R. Co., 264 Ill. 414; Chicago, I. L.R. Co. v. Turner, supra; Meyer v. Chicago, R.I. P.R. Co., 394 Iowa 722; Brusseau v. New York, N.H. H.R. Co., 187 Mass. 84; Slattery v. New York, N.H. H.R. Co., 203 Mass. 453; Keim v. Union R. Transit Co., 90 Mo. 314; State ex rel. Iron Mountain S.R. Co. v. Reynolds, 286 Mo. 204; Covell v. Wabash R. Co., 82 Mo. App. 180; Hickey v. New York C. H.R. Co., 8 App. Div. 123, 40 N.Y. Supp. 484; Noble v. New York C. H.R. Co., 20 App. Div. 40, 46 N.Y. Supp. 643, affirmed in 161 N.Y. 620; Pruey v. New York C. H.R. Co., 41 App. Div. 158, 58 N.Y. Supp. 797, affirmed in 166 N.Y. 616; Turell v. Erie R. Co., 49 App. Div. 94, 63 N.Y. Supp. 402; Wilcox v. New York, L.E. W.R. Co., 88 Hun. 263, 34 N.Y. Supp. 744; Doud v. Delaware, S. S.R. Co., 203 Pa. 227; Bard v. Philadelphia R.R. Co., 199 Pa. 94; Murray v. Pennsylvania R. Co., 242 Pa. 424; Clinger v. Payne, 271 Pa. 88; Collins v. Chicago N.W.R. Co., 150 Wis. 305; Chicago E.R. Co. v. Fretz, 173 Ind. 519; E.J.T. Moyer v. Vaughan's Seed Store, 242 Ill. App. 309.
The rule that one driving an automobile in the nighttime must so operate his car that he may stop it within the range of vision of his headlights is applicable in cases where vehicles or other objects on the highway may be seen by the aid of proper lights, but where an obstruction was of such a character and so placed that a motorist driving his car properly equipped with lights and brakes, at a moderate speed, is unable to see an obstruction in time to prevent colliding with it, and is otherwise free from negligence, he cannot be held guilty of contributory negligence as a matter of law.
Clyde Hayden and Dorothy Hunter v. The Jack Cooper Transport Co., 134 Kan. 172.
The principle of law announced and held in that case applies to this case, and the railroad company and its agents and servants in charge, control, management and operation of its engine, cars and train, having so negligently and wantonly in violation of every statute in this state bearing on the question and in violation of the railroad company's own rule, placed and left said freight car across the highway in this public crossing, enveloped in a dense and impenetrable fog, making it impossible for the deceased to see the railroad track, the crossing and particularly the railroad car in the crossing, the deceased cannot be held guilty of contributory negligence because by the use of his motor truck lights he could not see this car standing there in such dense fog at a sufficient distance to enable him to avoid colliding with it.
Hennessy v. Brooklyn City R. Co., 73 Hun. 569, 26 N.Y. Supp. 321, affirmed in 147 N.Y. 721; Denton v. Brooklyn Heights R. Co., 75 App. Div. 619, 78 N.Y. Supp. 157; Indianapolis Street R. Co. v. Slifer, 35 Ind. App. 700; Waring v. Dubuque Electric Co., 185 N.W. 130, 186 N.W. 42; Rote v. Pennsylvania M. Valley R. Co., 34 Pa. Super. 508; Baldie v. Tacoma R. Power Co., 52 Wn. 75; Mott v. Detroit, G.H. M.R. Co., 120 Mich. 127; Chicago E.I.R. Co. v. Zapp, 110 Ill. App. 553, affirmed in 209 Ill. 339; Morrow v. North Carolina R. Co., 146 N.C. 14; Hofstedt v. Southern P.R. Co., 1 P.2d 470; Richard v. Maine R.R. Co., 132 Me. 197; Elliott v. Missouri P.R. Co., 227 Mo. App. 225, 52 S.W.2d 448; Myers v. Atlantic Coast Line R. Co., 172 S.C. 236; Spiers v. Atlantic Coast Line R. Co., 174 S.C. 508; Orange N.W.R. Co. v. Harris (Tex. Civ. App.), 57 S.W.2d 931; The Chicago Iowa Railroad Co. v. Elliott Lane, 130 Ill. 116; Charles McWright v. Providence Telephone Co., 47 R.I. 197; Lambkin v. S.E. Ry. Co., 5 App. Cas. 352; An Automobile Accident Suit, Anderson: par. 784, p. 949; par. 756, p. 911; par. 752, pp. 906-7; par. 680; p. 836; 1 Personal Injuries on Railroads, White, Par. 32, p. 39.
The contentions of the railroad company that the deceased was guilty of negligence in colliding with this railroad car blocking the highway and the highway crossing in this dense fog, and that his own negligence was the sole proximate cause of his own injury and death, and the contention of the railroad company that its train crew had the absolute right under the law to assume that the deceased or any other and all other members of the traveling public on said highway could, would or ought to see the railroad car in such dense fog, and its contention that the railroad company and its crew had the absolute right under the law to leave such car standing there on its track across the highway, in such dense fog, acting on such assumption, without any special notice, warnings or signals of any sort whatever, are all completely overthrown by the authorities herein cited. But if the deceased had been guilty of contributory negligence of any sort, under the facts and circumstances of this case, which proximately contributed to the collision and his own injury and death, it would not bar the appellees of the right of recovery, because assumption of risk is abolished as a defense in bar by statute in this state.
Code of 1930, Sec. 511.
And under the express provisions of Section 6124, Code of 1930, requiring the driver of a motor vehicle to stop before crossing a railroad track, the question of contributory negligence of the deceased would have been for the jury.
See also Gulf S.I.R. Co. v. Saucier, 139 Miss. 497, 104 So. 180.
Moreover, if the deceased had been guilty of gross negligence in failing to see said car or in colliding with such car, it would not bar the appellees of the right of recovery.
Yazoo M.V.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; Mobile O.R. Co. v. Campbell, 114 Miss. 803, 75 So. 554.
See also Mississippi Code of 1930, Sec. 512; An Automobile Accident Suit, Anderson: par. 703, p. 859; par. 710, pp. 865-866; par. 718, p. 871; par. 722, p. 879; par. 729, p. 883; par. 756, p. 911; par. 769, p. 932; par. 772, p. 933; par. 791, p. 959.
All of these authorities required the trial court to submit this case to the jury on all questions of negligence and contributory negligence, for the determination of the jury, and the jury determined all of the issues of both negligence and contributory negligence in favor of the appellees, and the verdict of the jury is supported by the overwhelming weight of the evidence; supported by the railroad company's own rule; supported by the testimony of the railroad company's own conductor; supported by the admissions of the railroad crew that they were still using their lanterns lighted to see how to operate the train; and it was the appellees, and not the appellant railroad company, who were entitled to a peremptory instruction.
We have carefully examined the cases of Gulf, M. N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, M. N.R. Co. v. Addkison, 189 Miss. 301, 194 So. 593; Gulf, M. N.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Spilman v. Gulf S.I.R. Co., 173 Miss. 725, 163 So. 445; and Summerford v. Illinois Cent. R. Co. (Miss.), 196 So. 264, which are all the cases cited in the brief of the railroad company in support of the contention that the railroad company was not guilty of any negligence whatever and was entitled to a peremptory instruction, and it is manifest that there were no such facts and circumstances in any of those cases that are involved in this case now before the court, and we respectfully submit that these cases do not control the question of the liability of the railroad company in this case in view of the particular, unusual and extraordinary facts and circumstances surrounding the highway crossing in this case at the time of the collision and injury and death of the deceased, which unusual, excessive and extraordinary danger was created at the crossing involved in this case, by the gross if not wanton negligence of the crew of the railroad company itself, under the facts and circumstances disclosed by the record in this case. In determining the liability of the railroad company in this case the court will base its opinion upon the special and particular facts in this particular case.
Negligence depends upon the particular facts of each case and a decision cannot be given as a binding precedent unless the facts are identical.
Rocks v. Bender, 103 Pa. Sup. Ct. 546, 158 A. 705.
Argued orally by Ellis B. Cooper, for appellant, and by Alexander Currie, for appellee.
The appellees, the wife and children of Seth Summers, brought this action in the circuit court of Perry County against appellant, Mississippi Export Railroad Company, and Les Jennings to recover damages for the alleged wrongful death of the husband and father. There was a trial resulting in a verdict and judgment of $27,000, from which judgment the railroad company alone appeals. The principal ground assigned and argued for reversal is that the defendants were entitled to a directed verdict which was requested by them and refused. We have reached the conclusion that they were entitled to it upon the following considerations: Jennings was engaged in transporting, by truck, gravel to the City of Pascagoula. He had employed the deceased Summers to drive the truck. On the morning of the 24th of March, 1941, Summers while so engaged, on his trip to Pascagoula, approached the crossing of Highway 63 over the tracks of the railroad company. The crossing was blocked by a railroad box car; he ran into it and was killed. The ground relied on for recovery against the railroad company was that although the sun was about an hour high there was a fog so dense that a driver of an automobile complying with the law in all respects was unable to see more than a few feet ahead of him, and that notwithstanding the car had been on the crossing more than five minutes its presence there was unguarded by lights or otherwise; that the result was Summers ran into the box car without being able to see it in time to stop. The ground for recovery against his employer Jennings was that the former required him to haul from five to seven tons of gravel in a one and one-half ton truck, making the brakes ineffective, which resulted in part in his running into the box car. The evidence showed that the railroad company was engaged in switching operations and in doing so had blocked the crossing probably for eight or ten minutes. And Summers was familiar with the crossing. Taking the evidence as a whole it was sufficient to establish liability on the part of both defendants provided the law was with the plaintiffs.
On the authority of Gulf, M. N.R. Co. v. Holified, 152 Miss. 674, 120 So. 750; Gulf, M. N.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Spilman v. Gulf, S.I.R. Co., 173 Miss. 725, 160 So. 445; Gulf, M. N.R. Co. v. Addkison, 189 Miss. 301, 194 So. 593; Summerford v. Illinois C.R. Co. (Miss.), 196 So. 264, a railroad company may leave its train, or any part of it standing over a public crossing, night or day, and whether light or dark, without any light or warning of any kind to the traveling public; that the presence of the car or cars themselves is all the warning the traveling public is entitled to unless the conditions were unusual. Here they were not.
The Holifield case is the leading decision in this state on this question. In that case the evidence showed that the collision occurred on a dark night when the road was dusty, that the automobile was properly equipped with brakes and lights in good condition and was being driven at the rate of about fifteen miles an hour, that the driver was constantly keeping a lookout ahead but on account of the absence of lights at the crossing and the darkness and dust he was unable to see the box car on the railroad track until within about eight feet of it, and then it was too late for him to stop. The court uses this language [ 152 Miss. 674, 120 So. 751]: "The appellant had the right to occupy the crossing for its legitimate business purposes, and while so occupying the crossing it was not required to maintain lights on its cars, or to station a man with a lantern at the crossing to give warning that it was obstructed by the cars, unless the conditions and circumstances were such that the employes knew, or in the exercise of reasonable care and caution should have known, that a person driving upon the street at a reasonable rate of speed in an automobile properly equipped with lights, and carefully operated, could not see or might not be able to see the cars in time to avoid a collision therewith, or, in other words, as said by the Supreme Court of Alabama in the case of St. Louis-San Francisco Railway Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110: `The employes of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at reasonable speed will observe the cars upon the crossing in time to avoid coming into collision with them.'"
Section 5575, Code 1930, provides, among other things, that every motor vehicle driven at night shall be equipped with "at least two lights, showing white lights, visible at least two hundred feet in the direction toward which such motor vehicle is proceeding." Section 51, par. (c), Chapter 200, Laws of 1938, provides, among other things, that the driver of a motor vehicle "when approaching and crossing an intersection . . . when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance or on entering the highway."
The authorities referred to simply mean that the railroad company had the right to assume that Summers was complying with the law. If he had been it is manifest that the collision could not have occurred. The only warning due him was the presence of the box car, which he could have seen in ample time to stop. The comparative negligence statute has no application because the negligence of Summers was the sole proximate cause of his death — so far as the railroad is concerned.
Reversed and judgment here for appellant.
ON SUGGESTION OF ERROR.
In Summerford v. Illinois Central R. Co. (Miss.), 196 So. 264, the facts were that the injured party was acquainted with the crossing, having passed it many times before; it was night and was raining; he was driving twenty or twenty-five miles an hour, and he testified, which testimony was taken as true in disposing of the case, that "the fog and the contour of the highway obscured his vision so that he could not see the box car on the track until he was within twenty feet of it."
No stronger appeal is presented by the case at bar than in that case. Appellees urge that we should overrule the Summerford case and all those which it followed, from the Holifield case (Gulf, M. N.R. Co. v. Holifield), 152 Miss. 674, 120 So. 750, on down. Those cases are sustained by the weight of authority in other states upon the same point, whence we are constrained to decline the stated suggestion; and in so doing we have not at all overlooked any of the other contentions made by appellees.
In next to the last paragraph of our former opinion we referred to Sec. 5575, Code of 1930. This reference should have been to the sections amendatory thereof, to-wit, subsections (a) and (b), Sec. 104, and subsection (a), Sec. 105, Chap. 200, Laws 1938.
Suggestion of error overruled.