Davis v. Thomas , 127 Miss. 174 ( 1921 )

Ethkidge, J.,

delivered the opinion of the court.

The appellant was defendant in the court below; the ap-pellee was plaintiff. The declaration alleged that plaintiff was owner of an international truck, and was hauling lumber on the 18th day of September, 1919, and that it became necessary to cross one of the defendant’s tracks in the town of Newton, Miss.; that when he approached the crossing the train of the A. & V. Railroad had the crossing blocked and when it cleared the crossing it signaled the plaintiff’s servant to proceed and that he proceeded and after he came upon the interchanged tracts between the Gulf, Mobile & Northern Railroad Company and the Alabama & Vicksburg Railroad Company on said crossing that he saw some cars being backed over said interchanged tracks, and that he tried to back out of the way but the truck was struck and injured before he could do so; that the crossing in question is covered by four or five tracks. The action was predicated upon section 4047, Code of 1906 (section 6671, Hemingway’s Code), which reads as follows :

“It shall be unlawful to back a train of cars, or part of a train, or an engine into or along a passenger depot at a greater rate of speed than three miles an hour; and every such train, part of a train, or engine backing into or along a passenger depot and-within fifty feet thereof, shall, for at least three hundred feet before it reaches or comes opposite to such depot, be preceded by a servant of the railroad company on foot, not exceeding forty nor under twenty feet in advance, to give warning. For every injury inflicted by a railroad company while violating this section, the party injured may recover full damages without regard to mere contributory negligence.”

The appellant in its brief says: “To save the court the necessity of inquiring we will say that so far as this record is concerned the train was moving at a greater rate of speed than three miles per hour, was backing into a passenger depot and within fifty feet thereof, and was not preceded by a servant.”

They then state that they present the following propositions : First, that section 4047 has no application to injuries to property; second, appellee’s driver was guilty of gross negligence and under this statute mere contributory negligence alone bars recovery; third, the proximate cause of the injury was the negligence of appellee’s driver and not the defaults of appellant.

The injury in question arose prior to the amendment of the contributory or joint negligence statute so as to include injuries to personal property, and that section has no bearing upon this controversy. But this controversy is controlled by the provisions of the section above set out. It is insisted that this section is intended alone for the protection of persons; that it deals alone with the passenger depot; that the things forbidden therein are not forbidden at a freight depot; that the thing dealt with is a place frequented by persons who are prospective passengers or who have business at the depot.

We think the language of the statute, “For every injury inflicted by a railroad company while violating this section, the party injured may recover full damages without regard to mere contributory negligence,” intends to protect persons not only from personal injuries but from other legal injury. People frequently drive to depots and carry baggage and other effects with them and frequently pass depots with conveyances for various business reasons. The statute was enacted for the purpose of making such places safe for the public. Its language is plain and there is nothing in the context to limit the words “every injury.” While the statute may have been enacted primarily for the purpose of protecting persons, still the language does not limit the right of recovery to personal injuries. A person can be injured in his property as well as in his person, so we think there was no error in the construction placed by the court below upon this statute.

In the second point it is insisted that the plaintiff’s servant drove upon the crossing without stopping or looking or listening for the approach of the cars, and this was the grossest character of contributory negligence, and that it was more than mere contributory negligence, and that therefore the plaintiff was barred in its right of recovery on that account.

The facts show that the appellant did go upon the track without doing the prudent thing of looking up and down the track for approaching cars, but when we remember that he was signaled by the members of the crew of the other train to proceed, and that he did proceed, under the idea that they would not have given the signal had not the crossing been clear, it is not such gross negligence as will defeat recovery. It is true the signal proceeded from the servants of another corporation, and, while we might concede that this was done without authority of the appellant, and that the appellant was not responsible for the mistakes of the other crew, still it is a pertinent fact in determining whether the negligence was gross or otherwise. Under all of the facts in the record we cannot say that it was gross negligence.

It is next insisted in the third point named that the failure of the appellant to have a servant precede the train or the excessive speed, or both, were not the proximate causes .of the injury. It is manifest to us from the facts in this record that if the servant had preceded the backing train in the manner required by statute and given warning of the approaching cars the injury would not have occurred. The plaintiff’s servant would have seen such servant of the railroad in time to have prevented the injury. Such servant of the railroad necessarily would have come within the line of vision early enough to have prevented the plaintiff’s serwant from going upon the crossing.

We find no reversible error and the judgment will be affirmed.

Affirmed.