Columbus Greenville R. Co. v. Lee , 149 Miss. 543 ( 1928 )

^* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1007, n. 74; Evidence, 23CJ, p. 41, n. 71; Railroads, 33Cyc, p. 981, n. 81; p. 1016, n. 66; p. 1017, n. 72, 73; p. 1042, n. 25; p. 1104, n. 33; p. 1128, n. 63; p. 1134, n. 9; p. 1140, n. 36; As to imputed negligence of driver of automobile to guest, see annotation in 8 L.R.A. (N.S.) 597; L.R.A. 1915A, 961; 2 R.C.L. 1207; 1 R.C.L. Supp. 743; 4 R.C.L. Supp. 159; 5 R.C.L. Supp. 148; 6 R.C.L. Supp. 139; 22 R.C.L. 1047; 3 R.C.L. Supp. 1302; 4 R.C.L. Supp. 1485. The appellee's intestate, W.B. Pentecost, was one of three guests in a Ford coupe owned and being driven by Julius Steen. The road along which the automobile was traveling crossed the appellant's railroad, and the automobile, traveling at the rate of twenty-five or thirty miles an hour, reached the crossing at the same time that one of the appellant's trains was approaching it. Steen drove the car on the railroad track without stopping, and did not see the approaching train until just before the automobile went on the track. He then applied the brake and tried to stop, intending to back off of the track, but the train struck the car about the time it stopped and before he could back it off of the track. Had Steen stopped or looked or listened carefully, he would have discovered the approaching train. The train struck the automobile, and killed the appellee's intestate. The bell on the engine that was pulling the train was rung, according to the engineer and fireman, who were corroborated by other witnesses, as it approached the crossing for the distance therefrom required by chapter 320, Laws of 1924 (Hemingway's 1927 Code, section 7964). According to the evidence of other witnesses who testified for the appellee, and who were so situated that they would, in the ordinary course of events, have heard the bell had it been ringing, or the whistle had it been blowing, the bell was not rung and the whistle was not blown as the train approached the crossing.

An unopened bottle of whisky and an empty bottle which had recently contained whisky were found near the car immediately after it was struck by the train. Steen testified for the appellee, and, on cross-examination, was asked "Were any of you drinking?" to which he replied "I was not; I don't know whether any of the rest of the men were or not." He was then asked, "Isn't it a fact that all of you were drinking?" but, on objection by counsel for the appellee, was not permitted to answer. The witness again stated, in answer to another question, that he "was not drinking" and "was not drunk." He was then asked, "Do you know whose whisky that was in the car?" but, on objection by counsel for the appellee, was not permitted to answer, the court ruling "that drunkenness or sobriety of the witness can be inquired into but not the other parties." No evidence of other witnesses as to sobriety or drunkenness of the appellee's intestate was offered by the appellant, and it does not appear from the record that such evidence was obtainable. Mike Buford, one of the occupants of the car when it was struck by the appellant's engine, was not called as a witness by either side, and no reason therefor was given.

The appellant's complaints here are, that:

(1) The appellee should have introduced Mike Buford as a witness.

(2) The court below erred (1) in refusing to permit Steen to answer the questions propounded to him on cross-examination, which have been hereinbefore set out; (2) in instructing the jury for the appellee (a) "that, if the jury believe from the testimony that the plaintiff's intestate was killed by the running and operating of the train of the defendants, then under the law this proof isprima-facie evidence that the death of the plaintiff's intestate was sustained as a result of the negligence of the defendant in operating and running its train," (b) "that the negligence of the driver of the automobile, if there was such neglience, cannot be imputed" to the appellee's intestate (this charge was embodied in varying language in three of the instructions granted the appellee), and (c) in refusing the following instructions requested by the appellant:

"The court instructs the jury for the defendant that, if they believe from the evidence that, had plaintiff's intestate stopped, looked, or listened before attempting to cross the track, and that the failure to stop, look, or listen was the proximate cause of the death of plaintiff's intestate, then they will find for the defendant, unless you further believe that defendant was guilty of some negligence in operating its train.

"The court instructs the jury for the defendant that it was the duty of plaintiff's intestate to stop, look or listen before attempting to cross the track, and, if the jury believe from the evidence that, had plaintiff's intestate stopped, looked, or listened, he would not have been struck by plaintiff's locomotive, then they will find for the defendant, unless you further believe that defendant failed to continuously blow the whistle or ring the bell on its locomotive for a distance of three hundred yards, immediately before passing, and while passing over the crossing."

The evidence fails to disclose that any complaint was made by the appellant in the court below of the failure of the appellee to call Mike Buford as a witness; but, assuming that the court's attention was called thereto, and assuming that counsel for the appellant are correct in saying that the jury had the right to presume, from appellant's failure to call Buford as a witness, that his testimony would have been adverse to him (as to which we express no opinion but refer to Bunckley v. Jones, 79 Miss. 1, 29 So. 1000, wherein the presumption was permitted, andBrown v. State, 98 Miss. 786, 54 So. 305, 34 L.R.A. (N.S.), 811, wherein it was not), nevertheless, no question for review is here presented, for the reason that the jury were not prevented by any ruling of the court from presuming that Buford's evidence would have been adverse to the appellee.

We will assume, for the purpose of the argument, that "voluntary intoxication does not excuse one from the duty to use the same degree of care and prudence to protect himself against danger that is required of a sober man under the same circumstances" (note to McIntosh v. Standard Oil Co., 47 L.R.A. (N.S.) 730), and that, if the appellee's intestate was voluntarily intoxicated on the occasion in question, and that the jury would have been warranted in finding that, if he had not so been, he would have discovered the danger which Steen was about to incur in going on the track in time to have warned him against it. Steen testified that he did not know whether the appellee's intestate was drinking on the occasion in question or not; so that the only question propounded to him on cross-examination which he was not permitted to answer was, "Do you know whose whisky that was in the car?" That fact would have been some evidence that the whisky that had been in the empty bottle had been drunk by one or more of the occupants of the car, but of itself alone would have been wholly insufficient to warrant the jury in believing that the appellee's intestate was intoxicated. If error was here committed, it was harmless.

The negligence with which the appellant is here charged is the alleged failure of its servants to ring the engine's bell or blow its whistle as its train was approaching the crossing. The grounds of the appellant's request for a directed verdict in its favor are:

(1) The evidence that the bell was not rung and the whistle was not blown is negative in character, and does not warrant a finding that the one was not ringing or the other was not blowing as the train approached the crossing.

(2) The proximate cause of the striking of the automobile by the appellant's engine "was the stalling of the car on the track in front of the approaching train, at a time when it was impossible for the engineer to avoid striking the car."

Testimony that a fact did not occur, given by a witness "so situated that in the ordinary course of events he would have heard or seen the fact had it occurred," is sufficient to warrant a jury in finding that the fact did not occur. 1 Wigmore on Evidence, section 664; 23 C.J. 40; Y. M.V.R.R. Co. v.Lucken, 137 Miss. 572, 102 So. 393; Gulf S.I.R. Co. v.Carlson, 137 Miss. 613, 102 So. 168; Grantham v. G. S.I.R.Co., 138 Miss. 360, 103 So. 131; G.M. N.R. Co. v. Hudson,142 Miss. 542, 107 So. 369. Compare Lucas v. Goff, 33 Miss. 629.

The "stalling of the car" on the track in front of the approaching train, assuming that such is the fact, may have been, and probably was, a proximate cause of its being struck by the train; but there may be more than one proximate cause of an injury. And, in order for a defendant to be liable therefor, it is not necessary that his negligence be the sole proximate cause of an injury. He is liable if his negligence "concurs with one or more causes in producing an injury, . . . although his negligence, without such other independent intervening cause, would not have produced the injury." Telephone Co. v.Woodham, 99 Miss. 318, 54 So. 890. The jury, by its verdict, has found that the bell was not rung and the whistle was not blown as the train approached the crossing; and also, as it had the right to do, that the failure so to do contributed to the driving by Steen of the car on the track as the appellant's train was approaching the crossing. The appellant's request for a directed verdict was properly refused.

The appellant's objection to the instruction for the appellee, based on the prima-facie evidence statute (section 1985, Code of 1906 [Hemingway's 1927 Code, section 1717]), is that the evidence discloses all of the facts and circumstances surrounding the striking of the automobile by the appellant's engine, and therefore the presumption created by the statute, that the striking of the automobile was the result of negligence on the part of the appellant's servants, disappears, and the jury should decide the appellant's liability vel non without reference thereto. This may be conceded for the sake of the argument; nevertheless the instruction was properly given. This court so held forty-one years ago, in Vicksburg M.R. Co. v.Phillips, 64 Miss. 693, 2 So. 537, since the decision of which case the statute has several times been reenacted. That case has never been overruled, and was followed and approved in RailroadCo. v. Murray, 91 Miss. 548, 44 So. 785; Hollingshed v.Railroad Co., 99 Miss. 464, 55 So. 40; Railroad Co. v.Thornhill, 106 Miss. 387, 63 So. 674; Railroad Co. v. Gray,118 Miss. 612, 79 So. 812; Hines v. McCullers, 121 Miss. 666, 83 So. 734; Railroad Co. v. Knight, 138 Miss. 621,103 So. 377; Railroad Co. v. Hudson, 142 Miss. 542, 107 So. 369. Compare Davis v. Elzey, 126 Miss. 789, 88 So. 630, 89 So. 666; Railroad Co. v. Arrington (Miss.), 107 So. 378. The case of Railroad Co. v. Fondren, 145 Miss. 679, 110 So. 365, supports the appellant's contention. That case is in conflict with all of the court's prior decisions dealing with the statute, and is hereby overruled. The instruction does not contain the objectionable features that appear in the instructions condemned in Southern R.R. Co. v. Daniell, 108 Miss. 358, 66 So. 730.

The court below did not err in charging the jury that the negligence of the driver of the automobile could not be imputed to the appellee's intestate, nor in refusing to charge the jury that it was the duty of the appellee's intestate to stop, look, and listen before going on the railroad track. A guest in, or an occupant of, a vehicle being driven by another over whom he has no control, is not chargeable with the negligence of the driver of the vehicle (Railroad Co. v.Davis, 69 Miss. 444, 13 So. 693; Hines v. McCullers,121 Miss. 666, 83 So. 734; Coccora v. Vicksburg Light TractionCo., 126 Miss. 713, 89 So. 257; Y. M.V.R.R. Co. v. Lucken,137 Miss. 572, 102 So. 393), but only with his own negligence in not remonstrating with the driver against the doing of a negligent act when the danger therefrom is, or should be, apparent to him (Railroad Co. v. McLeod, 78 Miss. 334, 29 So. 76, 52 L.R.A. 954, 84 Am. St. Rep. 630; Railroad Co. v.Lucken, supra). As the appellee's intestate was not the driver of the automobile, and had no control over the driver thereof, it was, of course, not his duty to stop before going on the track; and it may or may not have been his duty to look or listen before doing so. It was the duty of the driver to stop, look, and listen before driving on the track; that is to say, it was his duty to do whatever was reasonably necessary to ascertain whether a train was approaching before driving on the track. Louisville, etc.,R.R. Co. v. Crominarity, 38 So. 633, 86 Miss. 464; Hopson v.Railroad Co., 87 Miss. 789, 40 So. 872; Skipworth v. Mobile O.R. Co., 95 Miss. 50, 48 So. 964; Ill. Cent. R.R. Co. v.Daniels, 96 Miss. 314, 50 So. 721, 27 L.R.A. (N.S.) 128. The appellee's intestate had the right to depend on the driver to discharge this duty, unless and until it became, or should have become, apparent to him that the driver would not so do. In other words, the only duty that devolved on the appellee's intestate was to remonstrate with the driver of the car against going on the track, if and when it became, or should have become, apparent to him that a train was approaching. An instruction based on this rule was granted the appellant, but seems, from the record, not to have been read to the jury by it.

Affirmed.