Gunter v. Yazoo & M. v. R. R.

111 So. 105, 145 Miss. 475, 1927 Miss. LEXIS 138

• Court: Mississippi Supreme Court
• Decided: January 24, 1927
• Docket: No. 25752.
• Status: Published

Opinion

McG-oweN, J.,

delivered the opinion of the court.

This suit was based on a declaration for personal injuries alleged to have been received by B. L. Gunter, resulting from his automobile stalling' on a railroad crossing and being struck by the engine of a passenger train running at the schedule speed of forty-five miles an hour. The automobile -was wrecked, and Gunter, according to the testimony for the plaintiff, was seriously injured. The gravamen of the complaint of the plaintiff was based on the defective condition of the crossing, coupled with the speed of the train. The verdict of the jury was for the defendant railroad company.

We have considered each and every assignment of error, but deem it only necessary to mention two:

(1) That instruction No. 6 is erroneous. This instruction reads as follows:

“A railroad company is not required under the law to maintain public crossings in the best possible condition; all that is required of them is to maintain such crossings in reasonably safe condition. So, if you believe from the evidence that the crossing in question was, at the time of plaintiff’s injury, in reasonably safe condition, then the defendant had performed its whole duty to plaintiff in this regard, and was not guilty of any negligence with reference to the condition of the crossing.” (Italics ours.)

Instruction No. 9 is to the same effect. Section 6677 Hemingway’s Code (section 4053, Code of 1906), is as follows:

“Where a railroad is constructed so as to cross a highway, and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highway, so that the railroad may be conveniently crossed, and to keep such crossings in good order; and it shall he the duty of the company to erect and keep in order all bridges on any highway, at such.points as bridges may be necessary to cross the railroad; and any company which shall fail to comply with these provisions shall forfeit the sum of one hundred dollars, to be recovered by action in the name of the county in which the crossing or bridge is situated.” (Italics ours.)

It- will be noted that the gist of this statute is that the crossings on public highways shall be kept in good order and that there shall be proper and easy grades in the highway. "VYe think is sufficient to say that, if a railroad maintains its crossings so that, upon conflicting testimony, a jury shall decide that they are in reasonably safe condition, then by necessary application the crossings are in good order.

The testimony in this case was conflicting, and the jury might well have said that plaintiff was correct in his view of the unsafe condition of the crossing'. On the other hand, they saw fit to adopt the view of the wit= nesses for the railroad company, .and found for the defendant, which finding we cannot disturb. We do not think there was error in these instructions, acquitting the railroad company of blame, if the crossing in question was in reasonably safe condition. The statute leaves it to the jury to construe the facts and circumstances of each case on its merits.

(2) That there were embraced, in the suit for personal injuries received at this crossing, damage to an automobile and automobile cushions and the loss of spectacles and some money; in other words, that there was a declaration in this case sounding in tort, and also, as to these articles, a suit for a conversion of personal property. !:

No demurrer was filed to the declaration, and the case was tried out. The plaintiff offered such proof as he had as to the damage to the automobile and to the loss of his personal property. An examination of the instructions shows that the only instruction asked on behalf of the plaintiff as to these articles was given by the court. This instruction is as follows:

‘ ‘ The court instructs the jury that, if they find for the plaintiff, then the plaintiff is entitled to recover, in addition to all damages sustained to his person, the following -to-wit: The damage to Ford automobile, four hundred and fifty dollars; one pair eyeglasses, twelve dollars; cash, twenty dollars; one watch, twenty-five dollars; trousers, shirt, and knife, twenty dollars; doctor’s bill to Dr. Lovejoy forty-five dollars, and Dr. Walley, fifty-five dollars; and loss of time amount to be fixed by the jury as they may find from the evidence to be true and correct. ’ ’

It will be observed that plaintiff asked that the jury base his right to recovery as to .these special articles upon his right to recover generally as plaintiff in the case. He secured the instruction asked for from the jury, and must abide the consequences. We cannot reverse the case, because no peremptory instruction was asked; and we do not think in this case there is any sufficient reason for us to be more liberal to the plaintiff than was requested by him in the lower court.

We have read the testimony carefully, we have read the instructions for the plaintiff and for the defendant, and, after mature deliberation and careful consideration, we are of opinion that the case was fairly and impartially tried in the court below. There is no reversible error in this case.

Affirmed.