Opinion
No. 31627.
March 25, 1935.
1. TRIAL.
In action for injuries received in railroad crossing accident outside six-mile speed limit, instruction that railroad had duty to keep train under control and at such speed as not to recklessly injure persons lawfully undertaking to cross, and requiring verdict for plaintiff if train was negligently operated at high speed so as to proximately cause or contribute to accident, held error and not cured by subsequent contradictory instruction that verdict could not be found against railroad on account of train's speed.
2. RAILROADS.
Railroads are not required to reduce speed at crossings outside six-mile limit, except at frequently used or crowded crossings.
APPEAL from circuit court of Pearl River county.
HON. HARVEY McGEHEE, Judge.
Action by B.W. Wheat against the New Orleans North Eastern Railroad Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
Parker Shivers, of Poplarville, and Heidelberg Roberts, of Hattiesburg, for appellants.
The court erred in refusing to grant appellants a peremptory instruction. The mere fact that there may be testimony tending to establish the plaintiff's theory of the case is not sufficient, but on the other hand it must be reasonable testimony. It must be testimony that is not inconsistent with admitted physical facts and is not inconsistent with natural laws or common knowledge.
Mobile Ohio R. Co. v. Johnson, 141 So. 581.
It was error on the part of the lower court to overrule appellant's motion for a new trial.
The verdict of the jury was against the overwhelming weight of the testimony.
Mobile Ohio R.R. Co. v. Johnson, 141 So. 581.
Instructions must be construed together as a whole and where instructions so construed can be reconciled the court will not reverse because thereof, but on the other hand it is the universal holding of this court that it is error to grant conflicting instructions and cases have been frequently reversed by this court because of conflicting instructions having been granted.
Ellis v. Ellis, 134 So. 150, 160 Miss. 345; Hines v. Lockhart, 105 So. 449; R.R. Co. v. Lilly, 8 So. 644; R.R. Co. v. McGowan, 46 So. 55, 92 Miss. 603.
Gex Gex, of Bay St. Louis, and J.M. Morse, of Poplarville, for appellee.
The jury, by its verdict, accepted the appellee's testimony.
The appellants, instead of attempting to obtain a reversal of this cause, should in our opinion, congratulate themselves on the small amount of the verdict, two juries having reached the same conclusion on two different trials of this cause.
Appellee's evidence is reasonable and in no way inconsistent with any physical facts.
The instructions granted appellee were proper.
So. R.R. Co. v. Murray, 91 Miss. 546.
The instruction obtained on behalf of the appellee was entirely correct; it was not predicated on the statutory rate of speed within municipalities, but upon the general law of negligence in the operation of trains at much frequented public highway crossings, and that it announced the correct law is sustained by the following cases:
St. Louis S.F.R. Co. v. Moore, 58 So. 471; Stevens v. R.R. Co., 81 Miss. 195, 32 So. 311; Nixon v. I.C.R.R., 103 Miss. 405, 60 So. 566.
Appellee, the plaintiff, alleged that he was injured in a collision between a fast passenger train of appellant railroad and a motor truck driven by appellee, and at a public crossing within the municipal limits of the town of Poplarville. The crossing is located about three-quarters of a mile north of the railroad station in Poplarville and far outside of the six-mile speed limit as prescribed by the existing order of the State Railroad Commission. The said crossing is not shown on the official map of the town, but the proof is that it had been worked and used by the public for a sufficient length of time to make it a public highway. The proof, however, is entirely silent upon the question whether it was much used, or frequently used, or crowded. Mobile O.R. Co. v. Bryant, 159 Miss. 528, 536, 132 So. 539. The speed of the train was about forty-five miles per hour.
At the request of appellee, the court granted the following instruction: "The court instructs the jury for the plaintiff that it was the duty of the defendants in said cause to keep their train under such control and at such a rate of speed when crossing the highway in question, so as not to recklessly injure persons lawfully undertaking to cross its right of way, at said crossing; and if you believe from a preponderance of the evidence in this case that said defendants negligently operated their train at a high and reckless rate of speed at said crossing without due regard for the safety of the travelling public, and if you further believe from a preponderance of the evidence in this case that such negligence proximately caused or proximately contributed to the plaintiff's injury; if you believe from a preponderance of the evidence that the plaintiff was injured, then you shall find for the plaintiff."
And at the request of appellants, the court granted an instruction reading as follows: "The court instructs the jury for the defendants that you cannot find a verdict against them on account of the rate of speed at which the train was traveling on the occasion in question."
It is not worth while to attempt to surmise how it could be that two instructions so obviously contradictory were given in the same case. All that is necessary to say is that being utterly contradictory the last-quoted correct instruction does not cure the erroneous instruction — they cannot be harmonized.
In Hancock v. Illinois Cent. R. Co., 158 Miss. 668, 131 So. 83, 84, where the train was running fifty miles an hour, within a municipality, but outside of the area therein prescribed, as to speed limits, by the railroad commission, and at a crossing which was a part of one of the principal highways of the state, this court said: "The very purpose of locomotion by steam upon railways is the accomplishment of a high rate of speed in the movement of passengers and freight, and this the laws authorize. To require railroads generally so to reduce their speed at all grade crossings as to avoid collisions with persons who may, carelessly or accidentally, be upon the crossing when a train is approaching would defeat, to a great extent, the purpose of the existence of railroads." See, also, Mobile O.R. Co. v. Bryant, supra, and New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720.
The result of these recent cases is that, except at frequently used or crowded crossings, railroads are not required, outside of the six-mile speed limits, to reduce their speed. The only evidence here as to the speed is that it was, as above stated, about fifty-five miles per hour, which for a fast passenger train is neither unusual nor otherwise legally objectionable at unfrequented crossings — that is to say, at crossings other than those much used or crowded — and when there are no physical conditions to substantially interfere with the efficacy of the customary warnings by bell and whistle.
Since the judgment must be reversed because of the erroneous instruction first above quoted, we have not examined the other assignments and express no opinion thereon, except to say that the evidence is probably sufficient to escape a peremptory instruction.
Reversed and remanded.