Jackson Electric Railway, Light & Power Co. v. Carnahan

48 So. 617, 95 Miss. 66

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinions

Fletcher, J.,

delivered the opinion of the court.

It is argued on behalf of appellant that a peremptory instruction should have been given for the defendant on the ground that the plaintiff proximately contributed to the injury by his own negligence and that a recovery should not be permitted to stand on the facts shown. We cannot yield to this contention in the light of plaintiff’s testimony, which tended to show that the motorman was guilty of gross negligence, amounting to willfulness and recklessness, of such a character as to warrant recovery in spite of plaintiff’s conceded negligence. Railroad Co. v. Brown, 77 Miss. 338, 28 South. 949. This view is accurately enough presented in the instructions given for plaintiff, in which the jury was informed that, although plaintiff was himself negligent, still the defendant would be liable if the motorman did not stop his car, provided he could have done so, after it became reasonably apparent that plaintiff was oblivious to his danger. Such conduct is tantamount to reckless negligence. We cannot say that this view was without warrant in the testimony, since the plaintiff insists that he went upon the track when the car was one hundred fifty or two hundred feet away, that he had signaled the car to stop at the next stopping station, and that he was traveling along the path usually employed by pedestrians. It has been well said by the Alabama court in a recent case that, while the motorman of a street car has a right to assume that a person on or near the track will remove himself from danger, yet that the law will not permit him to indulge this assumption beyond the time when the person’s danger becomes imminent. Birmingham R., Light & Power Co. v. Williams (Ala.) 48 South. 93. Accepting this as an accurate statement of the law, we think it was for the jury to say whether the company was guilty of such reckless or wilful negligence as renders ineffective the mere contributory negligence of the plaintiff.

However, the defendant was entitled to have his theory fairly presented to the jury. We have seen that the Alabama case above cited holds that the motorman may assume that a pedestrain on the track will not continue in a place of danger, when he knows that a car is approaching. This being true, we think it was error to refuse defendant’s second charge, which reads as follows: “The court instructs the jury that the motorman had a right to suppose that Mr. Carnahan would exercise reasonable care for his own safely, and would not continue to walk along the track when he knew the car was coming, or should have known it was coming; and if the jury believe from the evidence in this case that Mr. Carnahan, upon the occasion of his injury, did not act in a reasonable, prudent, and careful manner to protect himself against injury, and that the motorman did act in the handling of the car with ordinary care and prudence, and that the negligence of Mr. Carnahan contributed proximately to his injury, they must find for the defendant.” The exact principle therein announced is not covered in any other charge given for the company. It makes a failure to recover depend upon the exercise of ordinary care and prudence by the motorman, and the plaintiff must recover in this ease upon the jury’s belief that the motorman not only did not use ordinary care, but that he was wilfully and recklessly unmindful of the safety of the plaintiff.

Por error in refusing this instruction, and for this reason alone, the judgment is reversed and cause remanded.