Opinion
No. 32655.
March 22, 1937.
1. RAILROADS.
In guest's action against railroad for injuries sustained in collision between automobile and freight train, conflicting evidence as to whether railroad was negligent because of failure to give signals, failure to have stop sign comply with statute, and evidence as to whether automobile or train was being operated at an excessive speed held for jury.
2. TRIAL.
In guest's action for injuries sustained in collision between automobile and freight train, instruction with respect to contributory negligence of guest limiting but not precluding guest's recovery if railroad was negligent in specified particulars, "or was otherwise guilty of negligence on said occasion," was improper for announcing to jury that it could depart from proof.
3. TRIAL.
Trial court should confine case to precise issues therein in submitting case to jury.
4. RAILROADS.
In guest's action against railroad for injuries sustained in collision between automobile and train, instruction with respect to liability of railroad if train was being operated at speed exceeding six miles per hour in municipality held not erroneous on ground there was no evidence that crossing was within speed restricted district fixed by Railroad Commission.
5. RAILROADS.
Statute relating to liability of railroad if train is operated at speed exceeding six miles per hour in municipalities does not impose an absolute liability upon railroad where accident occurs while train is being operated at an excessive rate of speed, since speed must be proximate cause of the accident or a contributing proximate cause thereto (Code 1930, section 6130).
6. APPEAL AND ERROR. Railroads.
In guest's action against railroad for injuries sustained in collision between automobile and freight train, instruction with respect to liability of railroad if train was operated at speed exceeding six miles per hour in municipality, which omitted qualification that speed must be proximate cause of accident or contributing proximate cause thereto where railroad relied upon evidence that speed was not proximate cause of accident held prejudicial error (Code 1930, section 6130).
APPEAL from the circuit court of Adams county. HON. R.E. BENNETT, Judge.
Ratcliff Ratcliff, of Natchez, E.C. Craig, of Chicago, Ill., and Burch, Minor McKay, of Memphis, Tenn., for appellant.
The verdict of the jury must rest on a finding that the engine and automobile collided on the crossing. If the facts are that the automobile ran into the side of the train, after the engine had passed and the train wholly occupied the crossing, there can be no liability under the well-settled rule in this state, regardless of the speed of the train, regardless of whether or not the statutory signals were sounded approaching the crossing, regardless of whether the stop sign complied with the statute, and regardless of whether a flagman was stationed at the crossing to warn vehicles on the highway that the crossing was wholly occupied by the train.
Spilman v. G. S.I.R.R. Co., 173 Miss. 725, 163 So. 445; G.M. N.R.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; G.M. N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Southern Ry. v. Lambert, 160 So. 262.
This court will set aside a verdict opposed to the overwhelming weight of the convincing evidence where trial judge has refused to do so.
Railroad v. Bennett, 127 Miss. 413, 90 So. 113; Railroad v. Holcomb, 105 So. 787; Railroad v. Buford, 150 Miss. 832, 116 So. 817; Railroad v. Johnson, 157 Miss. 266, 126 So. 827; Railroad v. Johnson, 141 So. 581; Teche Lines, Inc., v. Mason, 144 So. 383; Railroad v. Blaylock, 160 So. 373; Beard v. Williams, 172 Miss. 880, 161 So. 750; Shelton v. Underwood, 174 Miss. 169, 163 So. 828; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3.
Most of the instructions given plaintiff contain positive error, are inaccurate, incomplete, contradictory, confusing and misleading.
Yazoo, etc., R. Co. v. Cornelius, 131 Miss. 37, 95 So. 90; Spilman v. Gulf, etc., R. Co., 173 Miss. 725, 163 So. 445; Gulf, etc., R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Gulf, etc., R. Co. v. Holifield, 152 Miss. 674, 120 So. 750.
The court failed to tell the jury that the failure of defendant to comply with the bell and whistle statute (Code 1930, section 6125) would impose liability only if it was the proximate cause of the accident.
Marx v. Berry, 168 So. 61.
It is too plain for argument that the violation of the bell and whistle statute does not impose liability unless it is the proximate cause of the accident. This court has repeatedly so held.
Billingsley v. I.C.R. Co., 100 Miss. 612, 56 So. 790; Yazoo, etc., R. Co. v. Cox, 132 Miss. 564, 97 So. 7; Yazoo, etc., R. Co. v. Green, 167 Miss. 137, 147 So. 333; Spilman v. Gulf, etc., R. Co., 173 Miss. 725, 163 So. 445.
The giving of an instruction that has no substantial support in the evidence is prejudicial error and requires reversal.
Williams v. City of Gulfport, 163 Miss. 334, 141 So. 288; Western Union T. Co. v. Robertson, 109 Miss. 775, 69 So. 680; Owen v. Anderson, 119 Miss. 66, 80 So. 386; Lackey v. St. Louis, etc., R. Co., 102 Miss. 339, 59 So. 97.
It is clear that the giving of instructions 13 and 14 was error because there is no proof that the crossing is within the speed restricted district. Furthermore, these instructions omitted the element of proximate cause, and, clearly, unless the speed of the train was the proximate cause of the accident the violation of the speed statute would impose no liability. This court has repeatedly so held.
Louisville, etc., R. Co. v. Daniels, 135 Miss. 41; Brinkley v. So. R. Co., 113 Miss. 367, 74 So. 280; Miss., etc., R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Clisby v. Mobile, etc., R. Co., 78 Miss. 937, 29 So. 913; Alabama, etc., R. Co. v. Carter, 77 Miss. 511, 27 So. 993.
The erroneous instructions are not cured by correct instructions.
10 C.J. 1087, sec. 1474.
Nothing is better settled in this state than that incorrect instructions are not cured by correct instructions, and that a verdict resting on contradictory and misleading instructions will not be sustained.
Railroad v. Cornelius, 95 So. 90; Railroad v. Phillips, 12 So. 825; Mahaffey v. Russell, 100 Miss. 122; Railroad v. McGowen, 92 Miss. 603; McNeil v. Bay Springs Bank, 100 Miss. 271; Soloman v. Compress Co., 69 Miss. 319; Hines v. McCullers, 121 Miss. 677; Louisville, etc., R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397; Hines Lbr. Co. v. Dickinson, 155 Miss. 674, 125 So. 93; Yazoo, etc., R. Co. v. Hawkins, 159 Miss. 775, 132 So. 742; Columbus, etc., R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; New Orleans, etc., R. Co. v. Wheat, 172 Miss. 524, 160 So. 607; Russell v. Williams, 168 Miss. 181, 150 So. 528; Railroad Co. v. Trotter, 61 Miss. 417; Railroad v. Minor, 69 Miss. 722.
Engle Laub, of Natchez, for appellee.
The verdict is not against the overwhelming weight of the convincing evidence but is wholly supported by the evidence.
All presumptions are in favor of the judgment.
Bates v. Strickland, 103 So. 432, 139 Miss. 636.
Where there is some conflict in the evidence the appellate court will accept the evidence of the successful party and determine from that whether or not the chancellor's decree must be upheld.
Biles v. Walker, 83 So. 411, 121 Miss. 98; Powell v. Tomlinson, 129 Miss. 354, 658, 92 So. 226, 583.
A verdict should only be set aside where it is manifest, from the evidence and surroundings, that it is not a fair and true verdict.
Shelton v. Underwood, 163 So. 828, 174 Miss. 169.
Plaintiff's instruction No. 4 reads as follows: "The court instructs the jury for the plaintiff that if you believe from a preponderance of the evidence the defendant on the occasion of the injury was railroad company then the defendant in the case was required to have the locomotive run by it to be provided with a bell of at least thirty pounds weight, and a steam whistle which could be heard distinctly at a distance of three hundred yards, and was further required to 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, and required to keep the bell ringing or the whistle blowing continuously until said crossing was passed, and if you believe from a preponderance of the evidence in this case that upon the occasion in question that the street or roadway crossing was a public highway crossing and the defendant then and there failed to give the statutory warning by failing to ring its bell or to sound its whistle as above set forth, then the defendant was guilty of negligence." We respectfully submit that the instruction is proper.
Smith v. Miss. Central R.R. Co., 173 Miss. 507, 154 So. 533; Section 6125, Code of 1930; Spilman v. G. S.I.R. Co., 173 Miss. 725, 163 So. 445; Southern R.R. Co. v. Murray, 91 Miss. 546, 44 So. 785.
Plaintiff's instructions Nos. 8, 9 and 10 informed the jury that a failure to give warning must have contributed proximately to the injuries before recovery could be had.
It is not required in the practice, this court has on numerous occasions held, to embody all propositions in any one instruction. The instructions are to be taken and read as a whole. One instruction is but a chapter in a book and this court has used condemnatory language on instructions which are too involved and which state too many propositions in the one instruction.
In the instant case the plaintiff had three distinct grounds of action, each of which was supported by evidence sufficient, if believed by the jury, to entitle the plaintiff to a verdict, and he was entitled to have each fairly presented and submitted under proper instructions to the jury.
Crowley v. Burgin, 38 So. 625; Smith v. Miss. Central R.R. Co., 173 Miss. 597, 154 So. 533.
Plaintiff's instruction No. 13 is the speed statute of Mississippi, section 6130, Code of 1930.
Currie Currie, of Hattiesburg, for appellee.
This court has never and will never usurp the function of the jury on pure issues of fact, and this court has established the sound and just rule that it will never disturb or interfere with the verdict of the jury which is supported by substantial evidence.
Fraternal Aid Union v. Whitehead, 87 So. 453; Sovereign Camp, W.O.W. v. McDonald, 68 So. 74; Gunter v. Y. M.V.R. Co., 111 So. 105; F.W. Woolworth Co., Inc., v. Volking, 100 So. 3; Mardis v. Y. M.V.R. Co., 76 So. 640; Continental Casualty Co. v. Garrett, 161 So. 753; Montgomery Ward Co. v. Hutchinson, 159 So. 862; Gulf Ship Island R. Co. v. Simmons, 121 So. 144.
All of the instructions granted in the case, on both sides, will be read together as the law of the case, and there is no rule of law or practice in this state which requires either a plaintiff or a defendant to submit his whole case in each and every separate instruction, and instruction No. 2 states an absolutely correct rule of law applicable to the case, and will be read in connection with all of the other instructions in the case, and the other instructions in the case for both the appellant and the appellee clearly define and submit to the jury the material allegations of the case.
The appellant complains of instruction No. 4 requested by and granted the appellee. There is no error in this instruction. It is based upon the bell and whistle statute of this state and follows the statute, and that part of the instruction complained of, "and required to keep the bell ringing or the whistle blowing continuously until said crossing was passed," is almost in the exact words of the statute and if our statute means what it says in plain English, this instruction is absolutely correct.
It is uniformly held that the violation of such a statute by a railroad company is negligence, not only negligence, but negligence per se.
An examination of the instructions requested by and granted to the appellant as they appear in this record, shows that they presented to the jury for its consideration every possible, conceivable defense to the case, and the appellant received more than it was entitled to as a matter of law, and the case against it was overwhelming on the law and the facts, and the jury reached a correct verdict, supported by the overwhelming evidence in the case, and the verdict was reasonable, and there is no reversible error in the instructions in this case.
The signals required of a railroad company on approaching a highway crossing are not only intended for the benefit of those who are on or about to cross the track, but also for the benefit of those who may be near the track in such position as to be placed in peril.
Mitchell v. Terminal R. Co., 97 N.W. 1112.
Failure to ring the bell at a crossing renders the company liable not only for an injury occurring at such crossing but for injuries to persons near the track who would have been warned by such signal of approaching danger and enabled to avoid it.
Warn v. Chicago, G.W.R. Co., 126 N.W. 1104; Kinyon v. Chicago N.W.R. Co., 92 N.W. 40.
The mere fact of great speed will not in itself constitute negligence, but if, by reason of natural or artificial obstructions, or a curve in the track, the crossing is of peculiar extraordinary danger, the operation of the railway must be conducted with reference to that fact.
Kinyon v. Chicago N.W.R. Co., 92 N.W. 40.
It is not error to instruct that failure to give statutory signals at a crossing constitutes negligence as to a person injured at such crossing and if the crossing is more than usually dangerous because of the obstructions then reasonable and adequate warning, in view of the dangers to be reasonably apprehended at the crossing, should be given of the approach of the train.
Bruggman v. I.C.R. Co., 134 N.W. 1079.
Evidence that the railroad company has failed to have a post set near its track at the point where the whistle should be sounded for a railroad crossing may be considered in connection with other circumstances in determining whether due care has been exercised by the company.
Gray v. Chicago R.I. P.R. Co., 139 N.W. 934.
Where, owing to the peculiar circumstances, other warning than required by the statute at a highway crossing is necessary, it may constitute negligence to fail to give warning signals on approach of the train at a greater distance from the crossing than required by statute.
Wilson v. Chicago M. St. P.R. Co., 142 N.W. 54; Morgan v. Iowa Cent. R. Co., 130 N.W. 1058; Kinyon v. Chicago N.W.R. Co., 92 N.W. 40.
One about to cross a railroad track at a highway crossing has the right to place some degree of reliance upon the presumption that the trainmen will do their duty and sound the usual signal of warning in approaching the crossing.
Mitchell v. Union Terminal R. Co., 97 N.W. 1112; Lonergan v. R. Co., 87 Iowa 757; Ward v. C.B. Q.R. Co., 97 Iowa 53; 2 White, Personal Injuries on Railroads, par. 880, page 1303, par. 951, pages 1393-4.
Argued orally by E.H. Ratcliff and C.H. McKay, for appellant, and by S.B. Laub and Neil T. Currie, for appellee.
The appellee, Howard H. Aultman, recovered a substantial judgment against the appellant, the Yazoo Mississippi Valley Railroad Company, because of injuries sustained by a collision between an automobile and the train at a public street crossing in Port Gibson, Miss.
The declaration charged appellant with negligence which caused the injuries to appellee in four counts: (1) The train of appellant was being operated in a restricted area at a greater rate of speed than 6 miles per hour; (2) that appellant failed to give the statutory warning for the crossing; (3) that appellant failed to erect and maintain proper stop signs as required by the statute at crossings; and (4) that appellant failed to stop its train after the accident, and that a combination of all the negligent acts approximately caused the injuries.
The plea to this declaration was the general issue.
As we have determined that this case must be reversed and remanded for another trial, we do not deem it necessary to give a detailed statement of the facts.
Aultman, a student in college, was riding as a guest with White, the driver of the automobile, going east over Church street in Port Gibson, which street is a public highway. This automobile collided with a freight train proceeding north. The evidence of White and Aultman tended to establish that they collided with the engine of the freight train on a crossing while the train was being operated at a speed of 15 to 20 miles per hour, and that there was no whistle blown or bell rung as required by statute, and that the Mississippi stop law sign did not comply with the requirements of the statute.
The evidence of the engineer, fireman, and brakeman was that no collision, so far as they were aware, and the brakeman said he was riding on the pilot for the purpose of making a switch, had occurred with the engine, and that appellee's bell had been rung and its whistle blown, and that the train was being operated at less than 6 miles per hour. The brakeman testified that the crossing is within the restricted area.
There was evidence of several witnesses that 80 yards from the crossing the automobile was being operated at a speed varying from 50 to 75 miles per hour.
The driver of the automobile said he had slowed down, and that if the law had been complied with, the collision would have been avoided. Both witnesses for appellee were positive that they did not strike a box car, but struck the engine.
The testimony of Aultman and White was contradicted by a stenographer who took down a statement made by them, which was never read to them after being transcribed. This statement was to the effect that they struck a box car.
There was contradiction on all of the material facts.
1. We are of the opinion that since the facts of this case are in sharp conflict, it was a question for the jury, and we cannot say that the verdict was against the overwhelming weight of the evidence.
2. Appellant complains of the giving of certain instructions, upon which we think it necessary to make some comment. Instruction No. 7 reads as follows: "The court instructs the jury for the plaintiff in this case that even though you may believe from a preponderance of the evidence in this cause that the plaintiff was guilty of contributory negligence on said occasion at the time he received the injuries herein complained of, and you further believe from a preponderance of the evidence in this cause that the defendant was also guilty of negligence on said occasion in neither blowing its whistle or ringing its bell at a distance of three hundred yards from said crossing so that same could be heard at said crossing, and in failing in keeping either said bell ringing or in failing in keeping said whistle blowing continuously until said crossing was passed, or was otherwise guilty of negligence on said occasion, which was the proximate cause of the injury sued for by the plaintiff, yet such contributory negligence of the plaintiff will not bar a recovery by the plaintiff from the defendant, but damages for the plaintiff shall be diminished by you in proportion to the amount of negligence attributable to the plaintiff."
The criticism of this instruction is as to the italicized words, which opened the door wide for the jury to depart from the pleading and proof. It is said by counsel for the appellee that this instruction is literally copied from an instruction in another case which was affirmed by this court.
We do not now say that we would reverse this case on account of this instruction, but we do say that it is exceedingly dangerous to announce to a jury that it may depart from the proof, and the facts of the case cited by counsel for appellee may have been very different from those in the case at bar. For that reason, it is unwise for a trial court not to confine the case to the precise issues therein.
3. It is next contended that the court below erred in granting instructions Nos. 13 and 14 for the appellee. Instruction No. 13 reads as follows:
"The court instructs the jury for the plaintiff that any railroad company having the right of way may run locomotives and cars by steam through cities, towns and villages, at the rate of six miles per hour and no more; and the company shall be liable for any damages or injury which may be sustained by anyone from such locomotive or cars whilst they are running at a greater speed than six miles per hour through any city, town or village. The Railroad Commission shall have power to fix and prescribe limits in cities, towns and villages in which railroad companies may run locomotives and cars by steam at a greater rate than six miles an hour, and whenever it shall have fixed and prescribed such limits in any city, town or village, the foregoing shall not thereafter apply to the running of cars and locomotives by steam within the said city, town or village."
Instruction No. 14 reads as follows: "The court instructs you for the plaintiff that in the municipality of Port Gibson, Mississippi, The Yazoo and Mississippi Valley Railroad Company may run their trains at a rate of speed exceeding six miles per hour within the limits of said Port Gibson, except over public road North of old Compress and Main Streets, and first street South of Main and between the same."
Appellant's objections to these instructions is two-fold, first, that there is no proof in the record that the crossing on Church street is within the speed restricted district fixed by the Railroad Commission, and, second, that these instructions omitted the element of proximate cause.
There is no merit in the first contention. On the second contention, we find no instruction which amends or modifies instruction No. 13 which imposes liability if the train was being operated at a greater rate of speed than 6 miles per hour in the restricted areas. Both instructions omit the qualification that the speed of the train was the proximate cause of the accident, or a contributing proximate cause thereto.
While it is true that instruction No. 13 is, to all practical effects, a literal copy of section 6130, Code 1930, such an instruction was under consideration by this court in the case of Vicksburg M.R.R. Co. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205, wherein it was held that liability was not absolute under this statute. Again and again the rule announced in the McGowan Case, supra, has been adhered to by this court. See the McGowan Case, supra; Mobile O.R.R. Co. v. Stroud, 64 Miss. 784, 2 So. 171; Alabama V.R.R. Co. v. Summers, 68 Miss. 566, 573, 10 So. 63; Howell v. I.C.R.R. Co., 75 Miss. 242, 21 So. 746, 36 L.R.A. 545; Jones v. I.C.R.R. Co., 75 Miss. 970, 23 So. 358; Alabama V.R.R. Co. v. Carter, 77 Miss. 511, 27 So. 993; Collins v. I.C.R.R. Co., 77 Miss. 855, 27 So. 837; Clisby, Use of Home Ins. Co., v. M. O.R.R. Co., 78 Miss. 937, 29 So. 913; Farquhar v. Alabama V.R. Co., 78 Miss. 193, 28 So. 850; L., N.O. T.R.R. Co. v. Caster (Miss.), 5 So. 388; Miss. Cent. R.R. Co. v. Robinson, 106 Miss. 896, 64 So. 838; Illinois C.R.R. Co. v. Watson (Miss.), 39 So. 69; Brinkley v. So. Ry. Co., 113 Miss. 367, 74 So. 280.
In the case at bar, the railroad company relied strongly upon its evidence that the speed of the train was not the proximate cause of the accident, because of the excessive speed of the automobile, together with the fact that the collision did not, as the railroad company contends, occur with the engine, but with a box car after the engine had crossed the track, and the box cars of the train occupied the crossing.
On instruction No. 13, the jury might have concluded that they were bound to find the railroad company liable, even if the automobile struck the caboose of this long freight train. The error in this instruction was fatal.
Reversed and remanded.