In New Orleans N.E.R.R. v. Holsomback, 168 Miss. 493, 151 So. 720 (1934), a freight train crashed at night into the stalled truck of plaintiff at a public crossing.Summary of this case from New Orleans Ne. Rr. v. Phillips
January 8, 1934.
1. APPEAL AND ERROR.
Reviewing court must accept evidence of prevailing party, together with all permissible inferences therefrom.
Something more substantial than conjecture or possibility is necessary to form supporting foundation of verdict or judgment.
Railroads are not, as a general rule, required to reduce speed of their trains in approaching seldom-used crossings in remote locations.
Evidence in action for damages resulting from collision between passing train and automobile, stalled at little used crossing, held insufficient to establish railroad's negligence by reason of train's speed and failure to stop.
APPEAL from Circuit Court of Lauderdale County.
Bozeman Cameron, of Meridian, for appellant.
The proof showed the situation with respect to this crossing. The road was known as the "graveyard" road, and the proof showed that it was as dead as its name implied, as far as traffic was concerned. Our contention is that it cannot be left to the caprice of a jury to say that any particular speed at this type of crossing is an excessive, or unreasonable speed. In this case the jury was left to speculate on this, and their verdict is nothing in the world but speculation.
Billingsly v. Illinois Central, 100 Miss. 612, 56 So. 790.
It is familiar law that even though a person is negligent, if the other has the last clear chance to avoid the consequences of the negligence, no liability or defense can be predicated on the original negligence, if the person so having the last clear chance fails to avail himself of it.
Fuller v. Illinois Central, 100 Miss. 705, 56 So. 783; Billingsly v. Illinois Central, 100 Miss. 612, 56 So. 790; Peitri v. L. N.R.R. Co., 152 Miss. 185, 119 So. 164; Y. M.V.R.R. Co. v. Green, 147 So. 333.
The plaintiff had the undoubted chance to stop this train by flagging it, and he failed to do it, and his failure is the sole proximate cause of the accident.
Dunn Westbrook, of Meridian, for appellee.
Certainly it was not a question of law for the court to determine whether or not, in view of the proof, the railroad company was operating the train at an excessive rate of speed or failing to maintain a proper lookout or both, and whether or not such action was negligent and was one of the proximate or contributing causes of the accident. All of these matters were properly within the province of the jury and were submitted under their consideration under the proper instruction of the court.
Hines v. Moore, 124 Miss. 500, 87 So. 1.
If the jury believed that the servants of the railroad company were negligent either in running the train at an excessive rate of speed or in failing to maintain a proper lookout, or both, the further question was for them to decide whether or not this negligence was the proximate or one of the contributing causes of the accident.
Railroad Co. v. Williams, 114 Miss. 236, 74 So. 835; Railroad Co. v. McGee, 117 Miss. 370, 78 So. 296; Railroad Co. v. Dillon, 111 Miss. 520, 71 So. 809; Power Co. v. McEachern, 109 Miss. 380, 69 So. 185; Illinois Central Railroad Company v. Williams, 144 Miss. 804, 110 So. 510; Brinkley v. Southern Railway Co., 74 So. 280.
Appellee, driving at night, attempted to cross the railroad at a public crossing and, immediately as he came upon track, the right front wheel of his automobile came off, thus leaving the car stalled on the tracks; and before the heavy machine could be removed it was struck by a southbound fast freight train.
Two issues of alleged negligence are presented for consideration:
First, it is alleged that the crossing was in such bad repair that this was the cause of the wheel coming off. The evidence strongly preponderates in the negative on this issue, but when we accept, as we must, that of the appellee, together with all permissible inferences to be drawn therefrom, nothing more than a conjecture or a possibility is thereby shown; and it has often been ruled by this court, as by all courts, that something more substantial than conjecture or possibility is necessary to form the supporting foundation of a verdict and judgment. Owen v. Railroad Co., 77 Miss. 142, 146, 24 So. 899; Illinois Cent. Railroad Co. v. Cathey, 70 Miss. 332, 338, 12 So. 253.
Second, it is contended that the train was running at an excessive rate of speed and that except for this the engineer could have stopped in time to have averted the injury. The crossing in question was in a remote location outside of the six-mile limit and was seldom used. Railroads are not, as a general rule, required to reduce the speed of their trains in approaching such unfrequented crossings.
This court said in Hancock v. Illinois Central Railroad Co., 158 Miss. 668, 131 So. 83, 84, that: "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 law authorizes. 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. Railroad Co. v. Bryant, 159 Miss. 528, 132 So. 539.
Appellee's testimony, taken as true, was that the train was running about fifty miles an hour. There was a curve in the railroad which, according to measurements made, was one hundred seventeen yards north of the crossing, but according to appellee's estimate was two hundred sixty yards to the north. The testimony is undisputed that the train, which was more than three hundred yards in length, ran approximately four hundred yards after the brakes were applied, and this, according also to the undisputed testimony, was approximately the shortest distance within which a train of that length and running at that speed could be stopped; the track being downgrade at that point. Since, then, the outlet of the curve where the enginemen could first see the automobile was only two hundred sixty yards from the automobile and the train could not be stopped, according to all the testimony in the record, in less than four hundred yards, it follows that no actionable negligence can be fastened upon the enginemen for failing to come to a stop or in their attempt so to do before the automobile was hit.
This makes it unnecessary to discuss the other and collateral matters argued. The peremptory instruction should have been granted.
Reversed, and judgment here for appellant.