Pascagoula St. Ry. & Power Co. v. McEachern

Smith, C. J., delivered the opinion of the court. This is an appeal from a judgment in favor of appellee for damages alleged to have been sustained by him because of a collision with one of appellant’s street cars. One of. the assignments of error is that the court below should have .sustained a demurrer which was interposed to the declaration. The several grounds of this demurrer simply set forth in different language that it appears from the allegations in the declaration that appellee’s own negligence contributed to his injury, and therefore he should not be permitted to recover. Conceding that the declaration does on its face show that appellee’s own negligence contributed to his injury, he was not, because of the provisions of our concurrent [390] negligence statute, barred, from a recovery by reason thereof. It appears from the evidence that in January, 1912, appellee, accompanied by J. W. Griffin, was traveling from Moss Point to Pascagoula in an automobile along the public road; the automobile being driven by appellee. This road is crossed diagonally at a point between Moss Point and Pascagoula by appellant’s street railroad, on which cars are propelled by electricity. When the automobile arrived in about twenty-five or thirty feet of this crossing, appellee’s attention was called by his companion to one of appellant’s cars which was approaching the road, and was then within about fifteen or twenty feet from the edge thereof. He immediately, in order to avoid a collision with the car, turned the automobile into a ditch,' resulting in some injury, both to bimself and the automobile. The speed at which the automobile approached the crossing was about twenty miles an hour. Appellee knew of the crossing, having passed over it frequently, but at the time was absorbed in conversation with his companion, and “was not thinking of the street car,” neither was he looldng ahead to see where and into what he was driving, so that he first saw the car when his attention was called to it by his companion, who also had ¡then seen it for the first time. The crossing could have been seen by appellee for some distance before he reached it. The motorman, according to his testimony, saw the automobile when the street car was in about two hundred feet of the crossing ;' the automobile being then about four hundred feet therefrom. The motorman stated that, as he was nearer the crossing than the automobile was, he thought that he had the right of way, but that he sounded his gong, and reduced the speed of the car to four miles an hour. Appellee and his companion both testified that they did not hear the gong, and that the car was running at about the rate of fifteen miles an hour. One of the passengers [391] on the car testified that the gong was sounded, hut on cross-examination stated that he could not he certain that this was true, but thought he remembered that the gong was sounded. He also testified that the car approached the crossing at a speed of eight or ten miles an hour. Appellee was clearly guilty of negligence which contributed to his injury, but nevertheless, under our concurrent negligence statute, he was entitled to recover in event negligence on the part of the motorman proximately contributed to his injury. Whether the motorman was guilty of negligence was, on the evidence, a question of fact for the determination of the jury, so that the court below committed no error in refusing to grant appellant a peremptory instruction. The rights of appellee and of this motorman at this crossing were equal, and it was the duty of each to exercise reasonable case in order to avoid a collision with the other. At the rate these vehicles were traveling, they would necessarily, as they in fact did, reach the crossing at the same.time; and, in order to safely avoid a collision, it was necessary for' one of them to either slow up or stop, and if either saw or could have seen, by the exercise of reasonable care, that the other intended to cross first, and that, by reason thereof, a collision was imminent, it was his duty to stop, if necessary, in order to avoid a collision, and not so to do was negligence, notwithstanding that the other, in attempting to cross ahead of him, may also have been guilty of negligence. 2 Nellis on Street Railways, sec. 388; 36 Cyc. 1516; 18 Amer. & Eng. Ency. Law, 582; 2 Elliott on Roads and Streets, sec. 1081; Clark’s Accident Law, pp. 235, 269, 319; Knox v. Street Railway, 70 N. J. Law, 348, 57 Atl. 423, 1 Ann. Cas. 164; Koester v. Decker, 22 Misc. Rep. 353, 49 N. Y. Supp. 276. If this motorman failed to sound his gong after seeing that the automobile was approaching the crossing, that fact alone [392] justified the jury in finding that he was guilty of negligence ; and whether he did sound his gong was for the jury’s determination. By one of appellee’s instructions the jury was charged that: “If you believe from the evidence in the case that the plaintiff was traveling on Telephone Eoad towards the point where defendant’s car line and track crosses such road, and you believe from the evidence in the case that the speed at which plaintiff’s automobile was traveling was not unusually excessive and not dangerous under usual or ordinary conditions, and you believe from the evidence in the case that plaintiff, then and there while traveling upon said road, momentarily forgot' the crossing of said road by defendant’s car line and track, and you also believe from the evidence in the case that the car of the defendant was operated in a negligent manner,” etc., “then your verdict should be for the plaintiff.” Exception is taken to the following portion of this instruction : “And you believe from the evidence in the case that plaintiff then and there, while traveling upon said road, momentarily forgot the crossing of said road by defendant’s car line and track.” Our concurrent negligence statute was not invoked by appellant in the court below, but it sought by all of the instructions requested by it to obtain a verdict wholly in its favor in event the jury should find that appellee was not in the exercise of due care at the time of the collision. This theory of appellant as to its liability was participated in by appellee in requesting the instruction here complained of, and by it appellee assumed a greater burden than he was called upon to bear, for he was entitled to a verdict in event negligence on the part of appellant’s motorman proximately contributed to his injury, notwithstanding his own negligence may ha^e [393] also contributed thereto. This being true, it is immaterial whether that portion of the instruction objected to is correct or not. Had our concurrent negligence statute been invoked by appellant, it may be that á different question would be presented, as to which we express no opinion. Affirmed.