Louisville & Nashville Railroad v. Crominarity

Thult, J., delivered the opinion of the court. The declaration in this cause predicates the right of recovery for the injury inflicted upon the negligence of the appellant, consisting of two distinct and different, though combined and concurrent, constituents. The first ground of negligence averred is the running of a train through an incorporated city at a rate of speed far exceeding the statutory limit. The second ground of negligence is the failure to ring the bell or sound the whistle when approaching and crossing a highway [467] or street. These two elements of negligence, under the proof in the instant case, were inseparably joined and integrated, and the two, operating jointly, caused the injury sued for. The facts as developed show by a very clear preponderance of the evidence — uncontradicted at all, save by one witness, whose testimony was discredited by the jury — that on the occasion in question the employes of appellant were guilty of both the negligent acts charged in the declaration. ' The train was running at an excessive rate of speed as an extra, or special, upon no specific schedule, and at an unusual time for a train to pass, over the most-frequented crossing in the city of Biloxi, without ringing the bell or sounding the whistle. This flagrant violation of two express statutory provisions intended to regulate the operation of trains, and thereby conserve the public safety, constitutes negligence, of course; and, if the proximate cause of the injury inflicted, appellee should recover, unless his own negligent conduct contributed to the accident. The proposition presented by the appellant, upon which hangs its chief argument, seehing to have the conduct of ap-pellee condemned as being such contributory negligence as should absolutely preclude any recovery, is that the appellee, in approaching the crossing where the injury occurred, did not bring his horse to an absolute halt before driving on the track. Many decisions and a multitude of authorities are cited to show that other courts have held that the mere failure to stop before driving on a railroad crossing constitutes, as a matter of law, such negligence as forbids recovery for any injury inflicted by a passing train. We decline to adopt any such rigid rule. What constitutes negligence must depend always upon the surrounding conditions and the attendant circumstances of the particular instance. USTo hard-and-fast rule of action can be prescribed which will make the same course of conduct under any and all circumstances either wise or unwise, cautious or reckless. Instances may be imagined when to stop before driving on a track would be hazardous in the [468] extreme. In other cases, driving upon a railroad track with-ont stopping would be in no degree negligent. So, too, it must be conceded that there are many cases where to drive upon a crossing without first stopping would be negligence of the grossest character. Due caution in one instance might well be deemed foolhardiness under different circumstances. The true rule is that it is incumbent upon the traveler to use that degree of care and caution which is rendered necessary by a reasonable regard for his safety under the peculiar circumstances and conditions by which he is at the time confronted. It is the duty of a traveler, in approaching a crossing, to use all reasonable precaution to apprise himself of the approach of a train, but whether that reasonable precaution will demand that he shall “stop and look and listen,” or whether any lesser degree of care on his part will be sufficient, must generally, though not invariably, be a question of fact'; and, being a question of fact, it should be submitted to the - jury, under proper instructions, for their decision. That course was adopted in the case at bar. The jury was instructed that it was the' duty of the appellee, in approaching the crossing, to have taken every reasonable precaution, in view of the obstructed condition of the crossing, to apprise himself of any approaching train, and to have listened in order to ascertain if there was any such train approaching, and that failure to observe this degree of care would defeat recovery. This was a correct exposition of the law, and was fully as favorable as the appellant had the right to demand, in view of the inexcusable negligence of its employes and their flagrant disregard of the rights of the public in the operation of the train causing the injury. It was, under the facts of this record, the'province of the jury, not the judge, to decide whether the conduct of the appellee constituted contributory negligence. ’ The other assignments of error presented by appellant, based upon the action of the court in refusing instructions, are without merit. The instructions refused Were either erroneous, [469] as propositions of law, or were upon the weight of evidence, and were therefore correctly denied. The only two important questions involved in the case — namely, the negligence of the appellant and the alleged contributory negligence of the ap-pellee — were fairly submitted to the jury, and we see no ground for disturbing their decision upon the facts. But it is urged no recovery can be sustained for appellee in the instant case because the right of action is by the declaration based on the negligence of the employes of appellants in running the train at an excessive rate of speed, while the case was submitted to the jury on the theory that the negligent failure to give the statutory signals and warnings was' the proximate cause of injury. The reasoning by which this contention is sought to be sustained is entirely too artificial and refined, and will not stand the test when scrutinized in the light of the record. The gravamen of the complaint is the negligence of the appellant. Two palpable omissions of duty, it is averred, constituted that negligence, and both contributed to the injury — the one, indirectly; the other, proximately. Had the excessive rate of speed not been coupled with the failure to give the customary' signals, the accident might not have happened, because the appellee, having timely warning of the approach of the train, could have avoided the dangerous situation into which the appearance of safety entrapped him. We are not prepared to say, therefore, that the jury erred in holding that the negligence in failing to ring the bell and sound the whistle was the proximate cause of the accident. The judgment is affirmed.