Gordon v. Illinois Cent. R. Co. , 190 Miss. 789 ( 1941 )

DISSENTING OPINION. The court below should not have excluded the appellant's evidence for it discloses a prima facie case of negligence on the part of the appellee.

The street on which this accident occurred is more than fifty feet wide between and excluding the sidewalks. It is paved in the center for a width of fifty feet, with an unpaved space on each side thereof extending to the sidewalks. There is no paving across the railroad right-of-way, but the right-of-way for the full width of the street, the neutral ground and sidewalks are filled with crushed stone, referred to as cinder-like substance, over the full width of which pedestrians crossed at pleasure. On the day preceding the night of this accident, the appellee was engaged in some work at this crossing, the exact nature of which does not appear, and it had erected barriers on each side of and about forty or fifty feet from its right-of-way, at each of which "little red lights" were placed which did not "reflect on the railroad track." These barriers did not extend across the full width of the street, but only across the fifty foot paving in the center thereof, leaving the sidewalks and the space between them and the paved portion of the street unobstructed. Several railroad tracks crossed this street and this crushed stone had not been removed from any portion of the street except between and beside the rails of the track on the extreme west side of the right-of-way. The removal of this crushed stone left an excavation on the sides of and between the rails and the cross-ties eighteen inches deep immediately next to what would have been the sidewalk on the south side of the street had it been extended across the street. With the street in this condition, the appellant, on a dark and "foggy night," was crossing it from the east to the west on the south side thereof, and when he came to the last westward track fell into this excavation about two and one-half feet north of what would have been the sidewalk had it been extended across the street.

Under Section 6127 of the Code of 1930, railroads are required to construct and maintain that portion of the public highway "interfered with by the construction of their roadbeds" (i.e. where highways cross their roadbeds), and to "see that the crossing is in such condition that the highway can be safely and conveniently used by the traveling public generally." Gulf Chicago R. Company v. Sneed, 84 Miss. 252, 36 So. 261, 262. This absolute duty was afterwards modified by this Court by holding (1) that a railroad's duty is to maintain highway crossings in such condition "as will permit safe and convenient passage over its roadbed by persons using reasonable care in the use thereof;" Gulf S.I.R. Company v. Simmons, 150 Miss. 506, 117 So. 345, 351; and again by holding "that the measure of a railroad company's duty in the maintenance of its crossings . . . is to use ordinary care to keep them in a reasonably safe condition for persons exercising ordinary care and prudence." Alabama V.R. Company v. Graham, 171 Miss. 695, 157 So. 241, 246.

Whether this appellee here negligently failed to discharge this duty is a question of fact. It is true that the facts out of which the question of the appellee's negligence vel non arises are not in dispute, but "negligence is not simple fact in itself, but is rather an inference from facts," Alabama V.R. Company v. Thornhill, 106 Miss. 387, 63 So. 674, 679; Sunflower Compress Company v. Clark, 165 Miss. 219, 144 So. 477, 145 So. 617, the drawing of which inference must be left to the jury although the facts out of which the inference arises are not in dispute unless it "clearly and manifestly" appears that reasonable men could draw only one inference therefrom, in which event the inference may be drawn by the court. Among the numerous cases in which this Court has so held are Mississippi Central R. Company v. Mason, 51 Miss. 234; Southern Railway Company v. Floyd, 99 Miss. 519, 55 So. 287; Collins Baking Company v. Wicker, 166 Miss. 264, 142 So. 8; Gow Co., Inc., v. Hunter,175 Miss. 896, 168 So. 264.

In Mobile Ohio R. Company v. Cox, 153 Miss. 597, 121 So. 292, this Court said that: "Fact finding, which includes all material inferences and deductions which may be reasonably and logically drawn from the relevant direct facts, is a province which belongs to the jury, to be exercised by them according to the everyday experience and common observation of the 12 men constituting the jury — not of and by any one man, be he judge or juror. It is true that if clearly and manifestly no reasonable inferences or logical deductions can be drawn which will materially affect the ultimate issue or issues in the case, it is the province and duty of the judge to so hold and declare by a peremptory instruction, . . ." In Bell v. Southern R. Company, 87 Miss. 234, 30 So. 821, approved specifically in Stevens v. Yazoo M.V.R. Company,81 Miss. 195, 30 So. 311; and inferentially in Abernathy v. Mobile, J. K.C.R. Company, 97 Miss. 851, 53 So. 539, this Court admonished us that "So many questions are integrated usually into the solution of the question of negligence — it is so necessary to carefully examine all the circumstances making up the situation in each case — that it must be a rare case of negligence which the court should take from a jury."

This excavation, as I have hereinbefore said, immediately adjoined what would have been the sidewalk had it been extended over this railroad and it was more than probable that a pedestrian attempting to cross the railroad between the two ends of the sidewalk proper on a dark night would miss his way and fall into the excavation. Were it my province to draw the inference from the facts here in evidence, I would unhesitatingly say that the appellee was negligent in not making some provision reasonably calculated to prevent what here occurred. The appellee contemplated that pedestrians would continue to here cross its track and the two barriers at the ends of the fifty foot street paving, which obstructed only vehicular traffic, at most only admonished pedestrians to proceed with caution, and nothing here indicates that the appellant did not so do, unless it be said that he should have felt his way step by step, which, of course, is not the law.

Roberds, J., concurs in this opinion.