November 19, 1928. Suggestion of Error Overruled December 17, 1928.
1. RAILROADS. Railroad's negligence held insufficient for jury as regarded injury to automobile driver due to fright occasioned by collision.
Negligence of railroad, in failure of engineer and fireman to keep proper lookout in approaching crossing, held insufficient for jury as regarded causal connection with injury to automobile driver resulting from fright due to collision with automobile after she had retreated therefrom.
2. NEGLIGENCE. "Proximate cause" requires causal connection between injury and negligence.
In order to constitute "proximate cause," there must be causal connection between injury and the negligence complained of.
APPEAL from circuit court of Hancock county, HON. W.A. WHITE, Judge.
Gex Russell, for appellant.
There is but one issue for the consideration of the court, and that is, when one by his negligence causes an injury, is he responsible for all of the results proximately flowing from that injury?
Since that question has been so well settled time and again, in the jurisprudence of every state, we shall undertake only to cite a few authorities of a general nature, and then cite the authorities specifically sustaining the right to recover for an injury practically identical with the one caused to the plaintiff herein. 17 C.J. 728. As to whether damages are recoverable for physical injuries resulting from fright caused by the negligence of another, see 17 C.J. 838; Hendrix v. Texas Ry. Co. (Texas), 89 S.W. 461; St. Louis S.W. Ry. Co. v. Murdock (Texas), 116 S.W. 139; Arthur v. Henry (N.C.), 73 S.E. 211; Simone v. Rhode Island Co. (R.I.), 66 A. 202; B. O. Railroad Co. v. Harris (Md.), 88 A. 282; Gulf C. S.F. Ry. Co. v. Hayter (Texas), 55 S.W. 128; Greene v. Shoemaker Co. (Md.), 73 A. 688; Kimberly v. Howland (N.C.), 55 S.E. 778; Sternhagen v. Kozel (S.D.), 167 N.W. 398; Pankoff v. Hinkley (Wis.), 123 N.W. 625; Spearman v. McCrary (Ala.), 58 So. 927; Alabama Fuel Iron Co. v. Baladoni (Ala.), 73 So. 205; Purcell v. St. Paul City Ry. Co. (Minn.), 50 N.W. 1034; Watson v. Dilts (Iowa), 89 N.W. 1068.
The law is too well settled to need citation of authority on the proposition that when one has been put in peril by the negligence of another, it is a question for the jury always as to whether that person acted as a reasonable and prudent person would have acted.
Smith, Young Johnston, for appellee.
The principle that there is no liability for injuries which one sustains when they voluntarily place themselves in a position to be injured, knowing the circumstances, is so well settled that it needs no citation of authority. The supreme court of Mississippi has ruled several times that in order to recover from any injury it must be shown that there was negligence on the part of the defendant which proximately caused the injury. Billingsley v. I.C.R.R. Co., 100 Miss. 612, 56 So. 790; L. N.R.R. Co. v. Jones, 134 Miss. 53, 98 So. 230; Connalley et al. v. L. N.R.R. Co., 4 Fed. (2) 539; L. N.R.R. Co. v. Daniels, 135 Miss. 53, 99 So. 434; Ozen v. Sperier, 150 Miss. 458, 117 So. 117.
It is clear that if Mrs. Pietri did sustain any physical injuries by reason of fright it was due to her own voluntary act in remaining in a position where she would become frightened, because she had ample time to go as far away from the scene of the accident as she wanted to.
Gex Russell, in reply for appellant.
It cannot be argued that appellant would have been any less frightened under the circumstances, had she been one hundred or four hundred more feet further removed from the place of the collision than she was after she had seen the train strike and destroy her property as it did. To say the least, the question as to what was the proximate cause of this injury was for the jury to have decided under the proper instructions of the court and not for the court to have decided, and certainly not after the court had overruled a demurrer to this count in the declaration.
Counsel state that the principle that there is no liability for injuries which one sustains when they voluntarily place themselves in a position to be injured is well settled and they cite authorities from the supreme court of Mississippi sustaining their position. But these authorities have no application to the case at bar for the reason that the testimony in this record clearly shows that the appellant did not voluntarily place herself in a position of peril, but that she was crossing the track of the appellant as she had a right to do, when, because of the improper crossing of the appellee, her car was caused to go dead, and we therefore pass up these authorities without further comment.
Argued orally by Bryan Russell, for appellant.
This is a suit for personal injury and loss because of damage to an automobile struck by a train at a highway crossing. The declaration is in two counts. In the first count the appellant alleges, substantially, that, as she approached the highway crossing on the Van Cleave and Ocean Springs public highway, she observed the "stop" signal, looked both ways, and saw no train. She drove up on the railroad track at the crossing, which was defective, in that there was a declivity of about three inches between the rails. This declivity caused her car to "jerk," and the engine was "killed." She made an unsuccessful attempt to start the engine. She then discovered a train approaching at a distance of about three miles. Unable to start the motor, she alighted, and undertook to push the car from the track. The front part of the car was over, but the rear end was between the rails. Failing to push the car, she tried to flag the train, using for that purpose her handkerchief and a bright red dress she was wearing; that the engineer in charge of the train gave no heed, and she became very much frightened, and ran away for safety. She was some distance away when her car was struck by the locomotive, and demolished.
The second count details the injuries suffered by her, due to fright occasioned by this occurrence. She was not physically injured, except as a result of the fright.
The proof shows that appellant left the track when the train was about a half mile away, and that she ran about seventy-five feet, and stopped until after the collision.
The cause was submitted to the jury on the question of damage to the car, resulting in a verdict for plaintiff, appellant here, of four hundred dollars. Appellant makes no complaint of the trial court in so far as concerns the judgment for damage to the car. The only ground of error seriously argued is the action of the trial court in refusing to permit plaintiff to submit to the jury the question of damages for injuries alleged to have resulted from the fright incident to the collision. Proof was offered to the jury on this point, but objection to its admission was sustained. In ruling upon this objection, the trial court said:
"The testimony in this case shows that this plaintiff drove on the track and that her car stopped, not through the negligence of the railroad, perhaps not through the negligence of anybody, but the negligence of the railroad had nothing to do with causing the car to stop. Under her testimony the train was some three miles away. She got out and undertook to push the car off. If she received any injury by undertaking to push that car off, those injuries were not caused by the railroad company. The railroad company had not been guilty of any negligence up to the time she left the track, so the railroad company could not possibly be responsible for any injury that she received by pushing this car. They had not been guilty of any negligence at that time. When the train was a half mile away she left the track and ran off in a hysterical condition, according to her testimony. The railroad company still had not been guilty of any negligence and the railroad company could not be responsible for that."
Appellant invokes the doctrine that a wrongdoer is liable to the person injured for all damages, as the direct proximate consequence of his wrongful act or omission, and also cites authorities upholding the right to recover damages for physical injuries resulting from fright proximately caused by negligence.
Conceding that the principles of law relied upon by appellant are applicable to facts bringing them into play, they do not solve the question now under review. For this appellant to recover, she must have received physical injuries, traceable for their proximate cause to the negligence of the railroad company. The negligence pleaded and relied upon was the failure of the engineer and fireman to keep the proper lookout in approaching the crossing. It is easy to see how this negligence could have caused the car to be demolished. Appellant, however, according to the undisputed proof, left the track when the train was half a mile away, and she was in a place of perfect safety when the collision occurred. Not only was it necessary to show that the particular negligence charged and proven was the proximate cause of appellant's personal injury, but it was necessary to show that, in the light of all the circumstances, it should have been foreseen as a probable and natural consequence. We concede that it is not an easy matter to determine and define proximate cause. As was said by this court in Billingsley v. I.C.R. Co., 100 Miss. 612, 56 So. 790:
"Proximate cause is said to be a `vexed metaphysical question;' but it can be safely said that, in order to constitute a proximate cause, there must be causal connection between the injury and the negligence complained of."
It is clear to us, however, that in the instant case there was no causal connection between the injury and the negligence complained of. It follows that the judgment of the court below will be affirmed.