April 22, 1929.
1. RAILROADS. Instruction authorizing inference of railroad's negligence in crossing collision, if jury could not determine how injury was inflicted, held not erroneous.
In action for damages for death of automobile passenger in collision with train at crossing, instruction authorizing application of inference of negligence against railroad in case of conflicting testimony preventing jury from determining how injury was inflicted held not erroneous.
2. RAILROADS. Instruction on condition of crossing over railroad track held not erroneous under evidence in crossing collision case.
In action for damages for death of automobile passenger in collision with train at crossing, instruction on condition of crossing held not erroneously given, in view of conflicting evidence relative thereto.
3. NEGLIGENCE. Guest in automobile held not charged with driver's negligence in failing to stop before going on railroad track.
Automobile guest riding in Ford coupe, with driver on one side of him and two men on the other side, held not, under circumstances, charged with negligence of driver in failing to stop before going on railroad track after making right-angle turn within sixty feet of track.
4. RAILROADS. Guest in automobile could assume that driver would obey law and take reasonable precaution before crossing railroad track.
Guest in automobile had right to assume that driver making right-angle turn within sixty feet of railroad track would obey the law and take such precaution as was reasonable and prudent under the circumstances, before crossing track.
APPEAL from circuit court of Oktibbeha county, HON. J.I. STURDIVANT, Judge.
A.F. Gardner, Will E. Ward and Owen Garnett, for appellant.
The first and second assignments of error relate to the two instructions on the prima-facie statute. Because that statute was meant to supply the absence of evidence, and not to elbow out of the case evidence properly there, we still respectfully insist that instruction No. 1 should not have been given. This case as decided on the former appeal, 145 Miss. 679, 110 So. 365, and the long line of decisions upon which the former holding was based, announced a rule which, if followed, would save to plaintiffs all the benefits they could rightfully claim under the statute, and at the same time put an end to the frequent reversals which have resulted, and will continue to result, from cunning efforts of counsel to twist that statute into serving a selfish purpose rather than the beneficent purpose that was in the minds of the legislators who originally enacted it.
But, if we are in error as to the first of these instructions, we insist that instruction No. 2 was vicious. Under that instruction there could never be a mistrial in a railroad case, no matter how honestly the jurors might disagree; and a railroad would thus be deprived of the equal right with other litigants to have a mistrial entered if the jury could not agree. If four jurors had stood for the plaintiff, and eight for railroad, the four for the plaintiff could have said to the eight for the railroad: "There is such a conflict of facts and theories between the testimony of plaintiff and the testimony of defendant as to prevent us from being able to agree with you as to how the injury was inflicted, and, therefore, under these instructions 1 and 2 it is the duty of you eight gentlemen to join us in returning a verdict for plaintiff, based upon the statutory inference of negligence." Again, the second instruction gave the jury an open door by which they could avoid their primary duty to determine the weight of the testimony and the credibility of the witnesses, and return a verdict based upon the presumption. Where there is such a conflict of facts and theories between the testimony of the parties as to prevent you from being able to determine how the injury was inflicted, you may avoid the mental effort and wrangling discussion necessary to decide this matter, and by virtue of the statute you may grab a luscious bunch of the defendant's earnings and pass it over to the plaintiff as a reward for his stupid carelessness; the instruction might as well have said as much to the jury. That instruction meant that unless the testimony for the defendant was so clear and so overwhelming as to exonerate or exculpate the defendant from blame the presumption must prevail. The statute was not intended to have such evil potency. There was no scarcity of evidence. The thing was done in the garish light of day, and three occupants of the car, and a large number of eyewitnesses, employee and non-employee, testified as to how and why it happened. No occupant of the car was killed. What excuse could a jury have for saying that they couldn't tell how the accident happened, and therefore, they would resort to the presumption? If all the facts and circumstances attendant upon the injury were not before the jury, then what would it take, or what would be necessary, to get before the jury such a state of facts and circumstances as would eliminate the presumption and put up to the jury the duty of deciding the case upon the weight of the testimony and the credibility of the witnesses? It was a case in which the jurors were under the duty to believe or disbelieve from the evidence, and any resort to the presumption was a manifest shirking of their sworn duty.
In Y. M.V.R. Co. v. Gore, 151 Miss. 145, 117 So. 521, recently decided, this court condemned two instructions on the prima-facie statute, one of which told the jury: ". . . and further, if there is a conflict in the evidence as to the facts and circumstances under which the injury was inflicted, and the jury is unable to determine for any reason whether such injury was the result of the negligence of the defendant's employees or not, than it cannot be said that such facts and circumstances are known in a legal sense and such prima-facie evidence of negligence on the part of such employees, remains in effect an inference of such negligence may be drawn from the infliction of such injury, and should determine the defendant's liability in this case." That instruction meant exactly what the cracker to instruction No. 2 in the case at bar meant, and it was held a violation of the rule laid down in Davis v. Temple, 129 Miss. 6, 91 So. 689, and Hines v. McCullers, 121 Miss. 666, 83 So. 734.
In G., M. N.R. Co. v. Brown, 138 Miss. 39, 102 So. 855, 859, this court speaking through Justice ETHRIDGE, said: "This court said it was improper to invoke the prima-facie statute as was done in the instruction there condemned, because, `It has often been held by this court that where the facts are in evidence, the jury must determine the negligence or lack of negligence from the evidence and not from the statute.'" In Davis v. Temple, 129 Miss. 6, 91 So. 689, quoted in the Gore case, before cited, this court said: "But the statute was not designed to free the jury from the duty of deciding the conflicting evidence as to what the real facts are, but such conflicts of evidence must be determined by the jury as any other conflict of fact . . . The jury has no arbitrary right to disregard the proof and render a verdict under the statute. The witnesses, in the absence of impeachment or contradiction, are presumed to speak the truth, and it is the duty of the jury to consider and give credence to evidence where it is not contradicted, where the witness is not impeached, or where it is not inherently improbable. Where the defendant's version of the facts is disputed by the plaintiff, then the duty devolves upon the jury to determine the truthfulness of the testimony. They cannot sidestep this duty by invoking the statute in such case."
In G., M. N.R. Co. v. Arrington (Miss.), 107 So. 378, this court, through Justice HOLDEN, reversed the case because of the giving of an instruction of the prima-facie statute. The justice said: "This instruction ought not to have been given because the testimony in the case sufficiently explains every material fact connected with the infliction of the injury, and clearly shows how the injury occurred; therefore, it was error to tell the jury that `the burden is upon the defendant to exculpate itself from any and all negligence.' . . . But we shall say just one more thing in connection with this statute, and that is, that after it has served its purpose in the trial by compelling the railroad to explain how the injury occurred then the question of negligence or not is to be decided from the facts in the case."
In Davis v. Ellzey, 126 Miss. 789, 88 So. 630, 633, cited in the Gore case, this court affirmed the judgment of the trial court "because the railroad company was liable on the undisputed evidence," but an instruction of the prima-facie statute was held not to be a correct statement of law because it told the jury: ". . . if you are satisfied by the preponderance of the evidence that the plaintiff was injured by the running of the train of defendant, but are in doubt as to the facts and circumstances attending the injury the defendant will be presumed to have been guilty of negligence and you will find for the plaintiff."
In Hines v. McCullers, 121 Miss. 666, 83 So. 734, cited in the Gore case, this court, through the Chief Justice, said: "On the contrary, when the facts and circumstances have been proven, or have been found by the jury when the evidence relating thereto is conflicting, the presumption of negligence raised by the statute, disappears, and the liability of the defendant must then be determined from the evidence, and the jury should find for the defendant, unless it appears from the evidence that he was guilty of negligence which caused the plaintiff's injury."
In the Thornhill case, 106 Miss. 387, 63 So. 674, this court used this language: "A presumption created only for the purpose of supplying prima facie an inference that might be drawn from a fact, were that fact known, disappears, and cannot be resorted to when the fact becomes known, . . ."
In the Daniell case, 108 Miss. 358, 66 So. 732, Chief Justice SMITH, referring to the Thornhill case, in which the opinion was written by him, said: ". . . but when this burden has been met and evidence discloses the doing or omission of every act from the doing or omission of which an inference of negligence could be drawn, the verdict of the jury must be arrived at in the same manner as it would have been in the absence of the statute."
If, as was said by Chief Justice SMITH in the Daniell case, "when this burden has been met . . . the verdict of the jury must be arrived at in the same manner as it would have been in the absence of the statute;" if, as was said by Justice HOLDEN in the Arrington case, "after it (the statute) has served its purpose in the trial by compelling the railroad to explain how the injury occurred, then the question of negligence or not is to be decided from the facts in the case;" if, as was said by Justice ETHRIDGE in the Brown case, it was improper to invoke the prima-facie statute there because, "when the facts are in evidence the jury must determine the negligence or lack of negligence from the evidence and not from the statute;" if, as was said again by Justice ETHRIDGE in the Temple case, "where the defendant's version of the facts is disputed by the plaintiff, then the duty devolves upon the jury to determine the truthfulness of the testimony, they cannot sidestep this duty, by invoking the statute in such case;" if the court still adhers to those elaborate and carefully considered decisions, as we know it does, then, it was error in the nth degree to tell the jury that if from conflicting facts and theories they couldn't determine how the injury was inflicted, the presumption fixed negligence upon the defendant. What purpose could it have served except to enable learned counsel for appellee, in his closing argument, to hammer into the heads of the jury, amid the fury and fervor of resounding oratory, the idea that the presumption solved their problem and made it easy for them to find a verdict for the appellee? The instructions on the prima-facie statute made it necessary for the appellant to prove its defense beyond a doubt. No matter how many eyewitnesses and participants in the accident testified, as long as the jury couldn't make up their minds, they had a right to soak the railroad with the presumption. Human testimony counted for nothing as long as the jury couldn't make up their minds. The instructions embodied the same vicious error that this court has repeatedly condemned; their effect was to place upon the appellant the burden of piling up evidence until the jury could make up their minds.
We invite attention to instructions refused defendant. It is evident from refused instructions that the defendant was trying to get before the jury that Tucker was under the duty to stop the car, and that Fondren's acquiescence in his failure to stop was negligence on his part. That the defendant exhausted its ingenuity in the effort to get a proper instruction as to negligence on the part of Tucker and Fondren, is apparent from the long list of refused instructions; and yet in all the instructions granted there is not the remotest suggestion that Tucker was under any duty to stop, or that Fondren's acquiescence in the failure to stop was negligence. The defendant could not get a single instruction which defined negligence on the part of Tucker and Fondren. The jury had no guide as to what constituted negligence on the part of plaintiff, and instructions for plaintiff, in addition to assuming negligence on the part of defendant granted the plaintiff immunity for anything Tucker did. The learned court below considered that Tucker's negligence could not in any event be charged to plaintiff, even though he acquiesced in it, but that Tucker's negligence could be charged to the defendant, even when it was the only negligence in the case. When we wrote instruction No. 13 we had before us the refused instruction in C. G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817, 819, which was one of the grounds of reversal of that case. That instruction was as follows: "No. J. The court instructs the jury that it was the duty of the driver of the car to stop, look, and listen before crossing the track, and if the jury believe that the driver of the car did not stop, look or listen, and the plaintiff's intestate did not remonstrate with him for not stopping to look or listen, and that as a result, the accident happened through no negligence of the defendant, then the jury will promptly find for the defendant." In that case, too, instructions for the plaintiff granted him immunity for anything the driver of the car did or failed to do, just as instructions did for the plaintiff here.
The testimony for appellee, taken alone, does not support an inference that the condition of the crossing was a proximate cause of the accident. A crossing that is safe for careful driving is a reasonably safe crossing. This principle is clearly recognized in G. S.I. Ry. v. Simmons, 150 Miss. 506, 117 So. 345, where this court said: "Under this statute it is not the duty of the railroad to make such grades as will make the crossing of its roadbed safe and easy under any and all circumstances, but only to make such necessary and easy grades as will permit safe and convenient passage over its roadbed by persons using reasonable care in the use thereof." Nobody said that crossing could not be safely passed by persons "using reasonable care in the use thereof," and the very witnesses who tried to make it a bad crossing had to admit that they had passed it safely, without difficulty, without mishap of any kind. In that state of the case, how could the condition of the crossing have been a proximate cause of the accident? Where the car was not overturned, was not caught and held, did not stall, and the occupants were not injured on account of any eccentric action of the car, it is misconception of the doctrine of proximate cause to say that the condition of the crossing was a proximate cause of the accident. Failure to keep the crossing in repair is not a basis of recovery for collision of a train with an automobile, but could only serve as a defense to the appellant's notice and proof of contributory negligence of appellee. B. O.R.R. Co. v. Reeves, 10 Fed. (2) 329.
In Hines v. McCullers, 121 Miss. 666, 83 So. 734, it was contended, among other things, that the crossing was not properly maintained in that no sign with the words "Lookout for the Locomotive," was at or near the crossing. In disposing of that contention the court said: "There is nothing in the evidence to warrant a finding by the jury that the negligence in the maintenance of the crossing contributed to the striking of the automobile by appellant's train, or that the appellant's engineer failed to keep a proper lookout. Consequently the jury should have been confined on the question of negligence to determining whether or not the bell was rung while the engine was approaching the crossing." Again, assuming for the sake of argument that there was some loose gravel on the south side, or some holes, or other defects, the instruction for appellee should not have been given for the further reason that there was nothing before the jury to show how long those defects had existed or that they had existed so long that the appellant could presume to have notice of them. The law does not require extraordinary diligence in keeping the crossing safe. Terre Haute R. Co. v. Clem, 23 N.E. 965; St. L.R. Co. v. Johnson, 85 S.W. 476; Mann v. Chicago R. Co., 86 Mo. 347; Flanery v. St. L.R. Co., 108 S.W. 575; Hill v. R. Co., 10 S.E. 91; Conner v. R. Co., 68 A. 481, 13 Ann. Cas. 1033.
Daniel Greene, for appellee.
The defendant was given seven instructions which set forth its defenses, stating that the burden was upon the plaintiff to prove its case by a preponderance of weight of evidence, and the jury was instructed that the plaintiff's testimony should overbalance or outweigh the evidence for the defendant, and was further instructed that if the plaintiff's evidence was only equal in weight to the evidence of the defendant, or if of less weight, then the plaintiff should lose. The court plainly instructed the jury that the defendant was only liable or could only be held liable for injury and damage sustained as a result of negligence of the defendant or its employees.
All that a passenger is ever called upon to do is to remonstrate with the driver if he reaches the railroad track in front of an approaching train without due care. In this case, appellee could not see back to the east. He had no way of seeing because two people were between him and the windows of the coupe on the east, one man sitting by his side on the seat, and another sitting on this man's lap; and it is undisputed by any witness who testified in the case that he had no way of seeing back to the east.
The 13th instruction was copied from the Buford case, cited by appellant, which case is entirely a different one from the instant case, in facts and circumstances. The court held in the Buford case that this instruction should have been given because of certain instructions which were given the plaintiff, none of which were asked for or given in the instant case.
The reversal of the Fondren case on the chief instructions complained of, should forever set at rest the question of the presumptive statute. Here the three occupants of the car, traveling with the train, did not either see or hear an approaching train, and positively testified that no crossing signals were given. In the next place appellee, as shown by the whole testimony, was in such a position in the Ford coupe that he could not have seen back to the east, and the whole testimony shows clearly that they unexpectedly came into this right-angle curve and crossing, without knowing it was there, and no one had the time to observe all the little discretionaries, movements, actions and remarks that would perhaps have been made in a case where they were familiar with the crossing.
Argued orally by C.L. Garnett, for appellant, and G. Odie Daniel and J.D. Greene, for appellee.
The appellee, T.L. Fondren, obtained a judgment against the appellant, the Columbus Greenville Railway Company, in the sum of five thousand three hundred fifty dollars as damages for the personal injuries received by him on account of being struck by a passenger train of the appellant at a public crossing in the town of Moorhead. This is the second appearance of this case, the first having been reversed and remanded. 145 Miss. 679, 110 So. 365.
The track of the railway company at the point in question runs east and west with the public highway on the south side of and paralleling the track until it reaches the crossing in question, where the main highway turns at a right angle and across to the north side thereof and continues into the town of Moorhead. On the south side, a less frequently used fork of the highway continues along the track past this crossing.
The appellee was riding in a Ford coupe with three other persons, one of whom was the driver of the car. The appellee was sitting in the middle with the driver on his left, and the other two parties on his right, one of whom was sitting in the lap of the other. The coupe was struck on this crossing by a west-bound passenger train running in the same direction in which the car was traveling before it attempted to cross the track.
There was conflict in the testimony as to whether the statutory crossing signals were given by the engineer of the train, and also as to the condition of the crossing where the car was struck. The facts and circumstances of the accident were testified to, and the testimony of numerous witnesses explained the circumstances under which the injury occurred.
The evidence shows that the car was driven upon the track by the driver, Tucker, without first having stopped within the distance from the track required by the Mississippi Stop Law. Appellee was riding in the car at the time of the injury as an invited guest. Neither the driver of the car nor the appellee was familiar with the road or the crossing, appellee having been over it only once and the driver of the car twice, one of the trips being made in the nighttime, when he approached the crossing from the opposite direction, the north side. Appellee testified that as the car approached the crossing, he looked to the west for a train but saw none; that he could not look the other way because of the two men sitting in the car on that side, but that after the car turned and approached the track he looked to the east and saw the on-coming train; and that he then had no time to warn the driver, because it was too late to stop. The driver of the car testified that he was not familiar with the crossing; that the road appeared to continue parallel with the track and past the crossing; that he was immediately upon the crossing before he was aware it was there, and that his attention was called to it by one of the other boys saying, "Turn here;" and that as the turn was made, the car slowed down, but that he did not stop before venturing upon the track.
Under these circumstances, the court granted to the plaintiff, appellee here, the following instructions:
(1) "The court instructs the jury for the plaintiff that if you believe from the testimony that plaintiff was injured by the running and operating of a train of the defendant under the law the establishment of the proof is prima-facie evidence that the injuries received by plaintiff were sustained as a result of the negligence of the defendant in the operating and running of its trains."
(2) "The court further charges the jury for the plaintiff that while proof of the injury by the running and operation of the train of defendant is prima-facie evidence that the same was the result of negligence of defendant, yet when you have heard all the facts and circumstances, if you can determine from such facts and circumstances whose negligence, carelessness, etc., was the cause of the injury then this presumption of carelessness must yield to the facts and you must decide the case upon the facts and not upon the presumption. However, if there is such a conflict of facts and theories between the testimony of plaintiff and the testimony of defendant as to prevent you from being able to determine how the injury was inflicted then you may apply the inference of negligence against the railroad company and render a verdict for the plaintiff." (Italics ours.)
The first and second assignments of error relate to the giving of these two instructions. Counsel say that, inasmuch as the facts and circumstances relative to the injury were given in full detail, the court should not have granted the instructions placing before the jury the statutory presumption of negligence arising from the fact that the injury was occasioned by the operation of a railroad train.
1. As to the giving of instruction No. 1 in the case of Columbus Greenville Railway Co. v. Fondren, supra, this case was reversed because of the giving of such instruction; and since the decision of that case, this court, en banc, has fully considered the same, holding in the case of Columbus Greenville Railroad Co. v. Lee, 149 Miss. 543, 115 So. 782, that the former Fondren case was expressly overruled by the court en banc after a very careful review of all of our cases pertinent to this statute.
2. As to the giving of the second instruction, the question for consideration is whether it is erroneous because of the wording of the last sentence thereof italicized by us. Counsel stoutly insist that this part of instruction No. 2 is error, denominating it as a "cracker," and urges that this cause should be reversed for the giving thereof; that it was tantamount to requiring the jury to find negligence at all events, and relieved the jurors from any difficulty and from standing by their individual opinions as to whether or not there was negligence on the part of the railroad company. Counsel also insist that, because of certain expressions indulged in by this court in a number of cases, that this precise instruction has already been condemned by it, and that cases have been reversed for the giving of the substance of this same instruction, calling our attention especially to the following cases: Alabama Great Southern Railway Co. v. Daniell, 108 Miss. 358, 66 So. 730; Hines v. McCullers, 121 Miss. 666, 83 So. 734; Davis v. Elzey, 126 Miss. 789, 88 So. 630, 89 So. 666; Gulf, M. N.R. Co. v. Brown, 138 Miss. 39, 102 So. 855; Gulf, M. N.R. Co. v. Arrington (Miss.), 107 So. 378; Yazoo M.V.R. Co. v. Gore (Miss.), 117 So. 521; Davis v. Temple, 129 Miss. 6, 91 So. 689.
To set out the several instructions in full would lengthen this opinion unnecessarily, so we shall content ourselves with stating the construction we have placed upon the action of the court in these several cases.
In the case of Alabama Great Southern Railway Co. v. Daniell, supra, Chief Justice SMITH condemned the instruction there under consideration because a greater burden was required of the defendant therein than was warranted — in fact, the jury were told that the circumstances of the accident must be clearly shown and the facts proven must exonerate the company from blame; that if it be not so proven, and the attendant circumstances of the act remain doubtful, then the railroad company is not relieved from liability and the presumption controls. In other words, by this instruction the language of this court in passing upon the question of a peremptory instruction for the defendant company was incorporated into the instruction, and the jury were, in effect, told that unless the defendant company was entitled to a peremptory instruction, the jury could not pass upon any conflict of evidence, but must resort to the presumption. This, we think, is a fair interpretation of the discussion by this court of the instructions condemned in this case. The question of the degree of proof was not considered by the court in the case of Alabama V.R. Co. v. Thornhill, 106 Miss. 387, 63 So. 674, but the propriety of invoking the prima-facie statute at all by instructions in this character of case.
In the case of Hines v. McCullers, 121 Miss. 666, 83 So. 734, by the prima-facie instruction invoked there, the jury were told that unless the facts and circumstances satisfy the jury that the defendant was free from all negligence which contributed to the injury, or unless the whole proof satisfies the jury that the defendant was entirely free from negligence, they would find a verdict for the plaintiff. The instruction emphasized that the jury must find from the facts and circumstances negligence vel non, and that the evidence must show, when the facts and circumstances have been proved and are conflicting, that the defendant is guilty of negligence. The instruction reversed the rule, placing the burden, which was upon the appellee, upon the appellant.
The instruction condemned in the case of Davis v. Elzey, 126 Miss. 789, 88 So. 630, 89 So. 666, told the jury that the presumption of negligence remained and controlled in the case until the facts and circumstances with reference to the injury have been satisfactorily proved to the jury. It also stated that if the jury were in doubt as to the facts and circumstances attending the injury, the presumption would be applied — in other words, requiring the railroad company to prove beyond a doubt that it was not negligent. The case was not reversed because of the giving of this instruction, but the court necessarily condemned the instruction as placing an unbearable burden upon the railroad company, reversing all rules of law with reference to the degree and burden of proof in a civil case.
In the case of Gulf, M. N.R. Co. v. Brown, 138 Miss. 39, 102 So. 855, the court there was considering instruction No. 6, and Judge ETHRIDGE, speaking for the court, condemned that part of the instruction which required a railroad company to exonerate itself from the blame, and, unless exonerated, it was liable, and the presumption controls in that event. Judge ETHRIDGE said: "It is not true that the law requires the facts to exonerate the railroad company from blame. The law requires the facts to be produced, and if the facts are not produced in evidence, the presumption prevails; but when the facts are produced the jury must decide the question from the facts, and unless the facts show negligence the plaintiff does not prevail." (Italics ours.)
In the case of Gulf, M. N.R. Co. v. Arrington (Miss.), 107 So. 378, Judge HOLDEN, speaking for the court, condemned an instruction because he said it was error to tell the jury that the burden of proof is upon the defendant to exonerate itself from any and all negligence. He also said that the instruction was defective in other respects, which he did not point out.
In the case of Yazoo M.V.R. Co. v. Gore (Miss.), 117 So. 521, the instruction condemned told the jury that if they were unable to determine for any reason whether or not such injury was the result of the negligence of the defendant or its employees, then the facts and circumstances were not known. This instruction was condemned by this court and the case reversed. The vice of this instruction was that the jury were told that they could resort to any reason, reasonable or unreasonable, to ascertain whether or not the injury was the result of the negligence of the defendant or its employees as an excuse for not determining the facts. It was not the purpose of the law to impose negligence when the facts were made known to the jury, but the purpose for which the jury was impaneled was to find out how the injury occurred, and, having so ascertained, say from the facts as to whether or not negligence resulted, or whether or not negligence from the facts could be inferred. It clearly relieved the jury of the duty of determining the facts on conflicting evidence.
In Davis v. Temple, 129 Miss. 6, 91 So. 689, the instruction there told the jury that the facts and circumstances attendant upon the infliction of the injury must be proved, and, as proved, must show that the defendant was guilty of no negligence in connection with the infliction of the injury; and they were instructed that because of a conflict of evidence they could apply the presumption and infer negligence against the railroad company. This instruction is not warranted by the Thornhill case, and clearly relieved the jury from determining on the facts whether or not there was any negligence shown as against the defendant company.
The instruction here under consideration is practically the language of the court in the case of Alabama V. Railroad Co. v. Thornhill, 606 Miss. 387, 63 So. 774; and the Thornhill case has been adhered to in every case where this question has been presented to this court, and has been especially approved in a number of cases. There Judge SMITH said:
"Where, as in the case at bar, there is a dispute as to the facts and circumstances under which the injury was inflicted, it cannot be said that they are known in the legal sense until they have been found by the jury, and, if the jury is unable, for any reason, to determine from the evidence what the facts and circumstances are, they never, in the legal sense, become known, and consequently in such a case the inference of negligence drawn from the infliction of the injury remains in effect and determines the defendant's liability."
The Thornhill case was followed and approved in the cases of Gulf, M. N.R. Co. v. Hudson, 142 Miss. 542, 107 So. 369, and Columbus G.R. Co. v. Lee, 149 Miss. 543, 115 So. 782. The instruction here complained of placed no new additional burden upon the defendant company, but adheres substantially to the rule announced in the Thornhill case. We think it would be decidedly better for counsel in drawing this instruction to confine it to the applicable language used in that case, and then there could be no chance for it to be misunderstood. It was not error to give the instruction here complained of.
3. Counsel next complains because an instruction was given by the court on the condition of the crossing, and insisted that there was no evidence upon which to base the instruction. We cannot agree with him on this contention. One witness testified that the south side of the approach to the railroad was in holes and had gravel dumped upon it, which had not been scattered over it; another witness said that he could not go over the crossing without running his car in low gear; and one witness stated that the planks between the rails were broken "in two" and the ends of them were sticking up. The railroad witnesses were in accord that the crossing was safe and convenient; the appellee's witnesses were in accord that it was in bad condition and unsafe. There was a sharp conflict in the testimony, and no error can be predicated upon this branch of the case.
4. Counsel for appellant next insists that the action of the court in granting plaintiff two instructions and refusing three instructions for the defendant, based upon the doctrine of imputed negligence, constituted error. The appellant, by his instructions, refused by the court, sought to have the jury instructed that appellee should be charged with the negligence of the driver in failing to stop before going upon the railroad track of the defendant, and cites the case of Columbus G.R. Co. v. Buford, 150 Miss. 832, 116 So. 817, in support of its contention. The court, on the facts of that case, held that instruction J was proper, but the principles involved in that instruction could not be applied to the facts in this case. The appellee was a guest, riding in a Ford coupe, the driver on one side of him, and two men, one sitting in the other's lap, on the other side. The car was suddenly turned from a road (which proceeded straight south) at right angles along the road which crossed the railroad track, and the turn was made within sixty feet of the track. To impute the negligence of the driver to the appellee, situated as he was in a car traveling at the rate of twenty miles an hour, would be to require the quickness of thought and the vigilance of a Sherlock Holmes. On the facts of this case, there was no room for this doctrine. See Columbus G.R. Co. v. Buford, supra; Columbus G.R. Co. v. Lee, 149 Miss. 543, 115 So. 782, and the authorities therein cited.
Under the circumstances the appellee had the right to assume that the driver would obey the law and take such precaution as was reasonable and prudent under the circumstances; but there was no time for the appellee to remonstrate with the driver from the time intervening between the lack of obedience to the law by the driver and the striking of the car by the passenger train.
Counsel's contention as to the giving of the signals in this case, and the character of the testimony of the plaintiff tending to show that the signals were not given, was fully discussed and disposed of in the case of Columbus G. Railroad Co. v. Lee, cited supra.
We think the instructions fairly submitted the case to the jury, and that there is no reversible error therein.