Jackson v. Mobile & Ohio Railroad

Mayes, J., delivered the opinion of the court. ■ At the February term, 1906, of the circuit court of Noxubee county, Mrs. Jackson and others sued the Mobile & Ohio Rail [36] road Company for $25,000 for the killing of W. R. Jackson, husband of Mrs. Jackson and father of the other parties named in the declaration. The declaration alleges that W. R. Jackson was returning home from the city of Macon, driving on a public highway which crossed the Mobile & Ohio Railroad at what is known as the “levee crossing,” about one and one-half miles from Macon; that W. R. Jackson, exercising all the care and prudence of a reasonable man, arrived at the crossing when one train, operated by the Frisco System over the line of the Mobile & Ohio Railroad Company, was passing north along said line, and as soon as said train had passed, the said Jackson, still exercising the prudence of a reasonable man, attempted to cross the track, knowing, as he did, that he had ample time to cross the track without any danger to himself, in case the said Mobile & Ohio Railroad Company exercised such care and caution as it was required to do by law. While in the act of crossing said railroad, the employes of said railroad company, in care of a passenger train, and in closer proximity to said Frisco train than ordinary care and prudence would sanction, and closer than they are authorized to do by law, the said Jackson being in ignorance of the same, carelessly, wantonly, and recklessly, and in total disregard of the life of the said Jackson, recklessly, wantonly, and willfully ran said passenger train along said track, and caused the same to strike said Jackson, hurling him from the track, and mangling his body and causing his death. The defendant pleaded the general issue, and also filed a second plea setting up the fact that W. R. Jackson was guilty of contributory negligence, in that he drove upon the track of defendant railroad, in plain view, in the daytime, of a fast-approaching passenger train, and when said train was too close to deceased to stop it before colliding with said Jackson and his wagon; that the track 'of the company, in the direction from which the train was approaching, was perfectly straight for about a mile and a half; that there was no obstruction upon the right of way [37] of the defendant to prevent the deceased from seeing the train approaching by the merest glance. To this second plea the plaintiffs filed a replication, in which they set up the fact that at the time of the occurrence in which J ackson was killed he drove upon the track of defendant railroad in plain view of the fast-approaching train, in the daytime, but that Jackson was exercising the care, caution, and prudence of an ordinarily prudent man, and at the time he drove upon the track he did not know and had no reason to believe that there was any approaching train, for the reason that no train was scheduled to run upon said track at that place at that time; that a freight train had immediately before passed the crossing, and that the agent of the railroad company in charge of the train gave no signal, either by blowing the whistle or ringing the bell, as required by statutes ; that the said J ackson was not guilty of contributory negligence, and that the accident could have been avoided, had the railroad company exercised ordinary care in attempting to avoid the accident. The replication denies that Jackson attempted to cross the track when defendant’s train was too close to have avoided the accident, but admits that the track was straight for ihe distance of a mile and a half or two miles below the crossing, and asserts that the agent of the company, in charge of the train, in the use of due care and caution, could have seen the position of Jackson, and could, with ordinary care and precaution, have prevented the accident. The defendants demurred to the replication alleging that the replication set up no defense to the plea of contributory negligence; second, because the replication shows that plaintiffs have no cause of action; third, because the replication shows that the deceased did not stop, or look, or listen before going on the track; fourth, the replication shows that deceased could easily have seen the approaching train by looking and could have avoided the accident; fifth, the replication shows that deceased drove upon the track in front of a fast-approaching train, which he could easily see as it approached. This demur [38] rer was sustained by the court, and, the plaintiffs declining to plead further, judgment was rendered dismissing the cause and taxing plaintiffs with costs. It is always a .condition precedent to the right of one to recover against another for negligence to show that the person seeking to recover was himself guilty of no negligence at the time the accident occurred. He cannot excuse himself from the duty which devolves upon him to exercise ordinary prudence by indulging in any supposition as to what will be the conduct of another, but he must safeguard himself by exercising at all times that care which the ordinary man would exercise under the same circumstances. The replication shows that there was an unobstructed view for a mile and a half or two miles, and, if Jackson had glanced in the direction from which the train was approaching, he must necessarily have seen the train. There was no obstacle on the track, and nothing to obstruct his vision, and the only excuse shown, or attempted to be shown in the pleadings, is that he had no reason to believe that there was any approaching train, and that none was scheduled to pass on the track, at that place, at that time, and that, a freight train having immediately gone before, he acted upon the supposition that no other train would immediately follow this one. We do not think, under these circumstances, that the replication shows that he was acting as a reasonably prudent man would act. It was not necessary for him to stop, look, and listen; but it was necessary, under the circumstances as presented by this case, for him to do one of the three things, and, if he had looked, he would necessarily have seen the approaching train, and thereby saved himself from the disaster which followed his lack of caution in this particular. It may have been negligence in the railroad company not to have blown the whistle or rung the bell, but their failure to do this did not excuse Jackson from the exercise of ordinary care himself. The replication plainly shows that he did not take those precautions for his safety which devolved upon him [39] as a reasonably prudent man to take. Therefore, a recovery cannot be had in this case. The case is easily distinguished from Hopson v. K. C., M. & B. R. R., 87 Miss., 789 (40 South. Rep., 872). In the Hopson case the facts showed that the crossing was a main crossing for an incorporated town, and that the sidetrack at the4ime of the accident was so filled with freight cars at the place of crossing that there was no view whatever of the main line; that the deceased at the time was engaged in hauling staves from the west side to the east side, and that in order to cross the track he had to pass through an opening left for that purpose between the freight cars, about sixteen feet wide, and that his view ivas obstructed, not only by the cars left upon the track by the company, but by storehouses and trees; and that the train was running at the rate of forty miles an hour through this incorporated town, whereas, if it had been run at the statutory rate of six miles, it was manifest that the accident could not have occurred; and the court held, under these circumstances, it was a question to go to the jury as to whether or not deceased was guilty of contributory negligence. But no such case is presented by the facts in this case. Here it was a country road, with an unobstructed view for a mile or more, and the most casual observation on the part of the deceased wrould have disclosed the approach of the train. We think that the action of the court was right in sustaining the demurrer to the replication and dismissing the cause. Railroad Co. v. McLeod, 78 Miss., 334 (39 South. Rep., 76; 52 L. R. A., 954; 84 Am. St. Rep., 630); V. & M. R. R. Co. v. McGowan, 62 Miss., 695 (52 Am. Rep., 205); Winterton v. I. C. R. R. Co., 73 Miss., 831 (20 South. Rep., 157); Crawley v. Railroad Co., 70 Miss., 340 (13 South. Rep., 74); Railroad Co. v. Jobe, 69 Miss., 459 (10 South. Rep., 672); Railroad Co. v. Crockett, 78 Miss., 412 (29 South. Rep., 162). Let the judgment be affirmed.