Gulf M. N.R. Co. v. Hudson

*548 McGowen, J., delivered the opinion of the court. This is an appeal from a. verdict against the railroad company for damages for personal injuries received by Mrs. Laura Hudson in a collision between a railroad passenger train and an automobile which occurred at Main street in Louisville, Miss., on a public highway crossing within the corporate limits thereof. We shall not go *549 into a detailed statement of the facts in this case. No complaint is made by the appellant as to the size of the verdict nor as to the injuries received by Mrs. Hudson. The main contention is that this court should hold that her injuries were proximalely caused by the negligence of her brother, who was driving the car at the time of the collision and whose guest she was. We think it sufficient to state that it was the contention of the plaintiff, appellee here, that the location was such that the train could not be seen from the street north except after one had approached to within a few feet of the crossing; that she looked and listened, and, upon seeing the train called upon her brother to stop the car; that the car did stop' before she was rendered unconscious by the force of the impact; and that part of the engine had passed the Ford ear after it was stopped, and the step of the cab of the engine was bent to the rear. The appellee and her witnesses testified that the whistle did not blow! nor the bell ring; that the train was running at a speed of from twenty-five to thirty-five miles an hour. It is conceded by the witness that this crossing’ was much used by the public, and that there was a cut one hundred eighty feet north from the crossing, and that a house was situated on the right side and to the north of the street where the accident occurred. The witnesses for the railroad company made it appear that the driver negligently drove into the train, operating his car at a rate of fifteen to twenty miles an hour. These facts Were properly submitted as the issue to be tried by the jury. Although there were many witnesses who testified in contradiction of the plaintiff and her nephew and two witnesses as to the ringing of the bell and the blowing of .the whistle for this particular crossing, yet this was a proper question for the jury, and they were the sole judges of the weight of the evidence and the credibility of the witnesses. Tt is insisted that the court erred in not giving an instruction that, if the engine, at the time it reached the crossing, was not running more than fifteen miles per *550 hour the defendant was not liable. We do not think it was error to refuse this instruction. The question of whether or not there w'as negligence in the operation of the train at this crossing on a public highway, while the testimony of the witnesses varied from fifteen to thirty-five miles an hour, with this crossing on the Main street one hundred eighty feet from the cut, was a question for the jury. The six mile per hour statute has no application in this case. The plaintiff did not use Dempsey, her brother, a man twenty-three or twenty-four years old, who was driving the car, as a witness, and the railroad company offered to show by a number of witnesses statements made by him, such as, ‘ ‘ Oh, I do not know what made me do it, ’ ’ and by others that he stated that he got his foot upon the accelerator instead of on the brake. All of these conversations sought to be introduced occurred after the injury occurred, varying from seven to fifteen minutes after the collision, occurred. We think this is controlled by the case of V. & M. Railroad Co. v. McGowan, 62 Miss. 682, 52 Am. Rep. 205, wherein the proposed testimony was to the effect that about seven minutes after the accident the engineer was heard to say, “How in the hell could a drunken man see a drunken man?” The only other point which we deem it necessary to notice in this case is that the court granted the following instruction for the plaintiff: “The court instructs the jury for the plaintiff that, if the jury believe from the testimony that the plaintiff was injured by the running and operating of the train of the defendant, then under the law this proof is primafacie evidence that the injuries of the plaintiff were sustained as a result of the negligence of the defendant in operating and running of its train.” And it is urged it is error because all of the facts and circumstances connected with this incident are in evidence, and that this instruction, together with others, amounted to a peremptory instruction. *551 The case of Gulf, M. & N. R. Co. v. Brown, 138 Miss. 39, 102 So. 855, is cited. The instruction in the Brown case is as follows: “Instruction No. 6. The court instructs the jury for the plaintiff that in all actions against railroad companies using engines, locomotives, and cars propelled by the dangerous agency of steam and running on tracks, for damage done to persons at highway crossings, proof of injury inflicted by the running of the engines and cars of such railroad under the law is prima-facie evidence of the Want of reasonable skill and care of such rail-corporation in reference to such engines, and in this case, if you believe from the evidence the plaintiff was injured under such circumstances, this makes out a prima-facie case of liability, and this statutory presumption cannot be overthrown by conjecture; the circumstances of the accident must be clearly shown, and the facts so proven must exonerate the company from blame; otherwise the railroad company is not relieved from liability, and the presumption-controls, and in such case you should find for the plaintiff.” Judge Ethridge, speaking for the court in the Brown case, 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. If there is a conflict in the facts as testified by the different witnesses, the jury must pass upon the conflict, and must determine what the facts are from the evidence. They must decide the question of the veracity of the witnesses so presented. Frequently, where the facts are in evidence, two or more different reasonable conclusions might be drawn by the jury. In such case it is the duty and province of the jury to apply their minds to the question and to decide which is the more reasonable and *552 probable inference to be drawn from the facts so proven, and they cannot escape this duty of applying their minds to the proposition by adopting the statute as a substitute. The instruction here involved authorized the jury in such case to adopt the presumption of liability. In other words, if all the facts are in evidence, and different reasonable conclusions could be drawn therefrom, one favorable to the railroad company and another favorable to the plaintiff, the instruction makes it the duty of the jury to adopt that unfavorable to the railroad company. The statute was intended to have operation only when the facts were not or could not be produced, and places the burden upon the company to produce the facts which are generally peculiarly within its own knowledge.” It will be noted that the court in the Brown case, supra, only held that the railroad company did not have to exonerate itself from blame where the facts were all in evidence. In the instant case the railroad company secured the following instruction: “The court instructs the jury for the defendant that, even though proof of an injury by the running of a locomotive or cars raises a presumption of lack of ordinary skill and care on the part of the defendant, yet, when the facts are proven by either party, the presumption of negligence disappears, and liability of the defendant must then be determined from the evidence, and the jury must find for the defendant, unless you believe from the evidence that the defendant w!as guilty of negligence and that the negligence of the defendant was the proximate cause of the plaintiff’s injury.” By this instruction the jury were informed that, if the facts and circumstances of the accident were shown, then the presumption did not apply, and the two instructions taken together constitute the law. In other words, if the jury could, from the facts, determine how the accident occurred, and who was to blame, then the primafacie statute did not apply. On the other hand, if all of *553 the facts and circumstances did not satisfy the mind of the jury to the degree required by the law as to how the accident occurred, then the prima-facie statute was properly invoked. We think there was no error in granting this instruction as given in this case. It will be noted that in the Brown case, supra, the instruction condemned required the defendant to exonerate itself, and the vice of that instruction does not appear in the one given in the instant case. In A. & V. Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674, it is plainly stated that this prima-facie statute disappears when the facts and circumstances under which the injury was inflicted have been ascertained, and when the facts and circumstances are in evidence, and there is no dispute, and only one reasonable inference can be drawn from the testimony, then the court should instruct for the plaintiff or defendant upon that inference, and the court took up the cases arising’ under this statute, reviewed and analyzed them, and announced the following conclusions (106 Miss. 409, 410 [63 So. 678]): “From this review of these cases, it seems reasonably clear that: “(1) Proof of injury inflicted by the running of defendant’s cars is prima-facie evidence of negligence, and, unexplained, entitles the plaintiff to judgment. “ (2) When the facts and circumstances under which the injury was inflicted have been ascertained, the presumption of negligence created by the statute disappears, and the defendant’s negligence vel non must then be determined alone from such facts and circumstances. “(3) This prima-facie presumption, however, is not a specific one but a general one; that is, negligence is presumed in the doing or omission of any act that could have reasonably caused the injury, and consequently, in order that it may be rébutted, the evidence must disclose the doing or omission of every act from the doing or omission of which an inference of negligence vel non could be drawn. *554 “(4) When the facts and circumstances are in evidence, and there is no dispute relative thereto, and it appears that only one reasonable inference can be drawn therefrom, a verdict may be directed for either the plaintiff or the defendant as the case may be. “(5) Even though the facts and circumstances are in evidence, and although there may be no conflict therein as to what these facts and circumstances are, unless they justify the court in directing a verdict, it is proper to charge the jury on request of the plaintiff that proof of injury by the running of the cars is prima-facie evidence of negligence, and on request of defendant that, since the facts and circumstances under which the injury was inflicted are known, they will determine whether or not the defendant was negligent solely therefrom without resorting' to any presumption of negligence.” We have already said that there was conflict in this testimony upon the material points involved, the plaintiff asserting that-the defendant was negligent in failing to ring the bell and blow the whistle in approaching this public crossing, and that it was further negligent in running at an excessive rate of speed, and that plaintiff was thereby injured. On the other hand, the defendant’s contention was that the injury was caused by the fast driving of the automobile driver, and that the proximate cause of the injury was due to the fact that he drove into and struck the train. There was evidence on both these theories, and in this state of the case we cannot say that the jury did not have a right to resort to the prima-facie presumption, if, in its opinion, the testimony of all of the witnesses did not show them how the injury occurred. In other words, in a legal-sense, as was said by Chief Justice Smith in the Thornhill case, supra, Where there is a sharp dispute, it cannot be said that the facts and circumstances are known, and it may well be that in this case the jury was warranted in turning to this prima-facie presumption in order to legally determine the facts. So that the rules announced in Railroad v. Thornhill, supra, are adhered to and reannounced *555 as stated therein, and consequently we are of opinion that no error may he predicated upon the giving of that instruction in this case. We find no reversible error in this case. Affirmed