Thompson v. Mississippi Cent. R. , 175 Miss. 547 ( 1936 )

Appellant's decedent was killed at a grade crossing on appellee's railroad line, and suit was instituted against the railroad company, predicated principally upon the charge that the railroad employees had failed to comply with the familiar statute, section 6125, Code 1930, which requires the blowing of a whistle or the ringing of a bell when approaching public crossings. The preponderance of the evidence supports the railroad that the statutory signals were in fact sounded, and there was a verdict for the defendant railroad company. But in examining the instructions next to be mentioned, and of which complaint is made, we must view them as though the proof were undisputed that the crossing signals were not sounded. Appellant's decedent was the driver of the automobile which was struck at the crossing.

There were six instructions upon the subject to be discussed, but reading them together, each as supplementing and explaining the other, the proposition of law carried thereby to the jury is embraced in instructions Nos. 6 and 16, as follows:

"The Court instructs the jury for the defendant that although they may believe from the evidence that the bell of defendant's locomotive was not ringing for a distance of 300 yards before it came to and when passing over the Liberty road crossing, and although they may believe that the whistle was not blown for a distance of 300 yards before defendant's train came to and when passing over the crossing, still the plaintiff cannot recover, if they further believe that the deceased wife of the plaintiff saw the train before reaching the crossing in time to have stopped the automobile but proceeded after seeing it in an effort to cross, to pass over the crossing."

"The Court instructs the jury for the defendant that the purpose of the ringing of the bell and the blowing of the whistle continuously for a distance of 300 yards before reaching and upon passing over any public highway crossing is to give notice to persons who are going to pass over a public highway crossing, but the failure either to so ring the bell or blow the whistle will not entitle the plaintiff in this case to recover if his deceased wife saw the train, and by the use of ordinary care could have stopped before undertaking to pass over the crossing in front of defendant's locomotive."

The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred; or, as otherwise stated, there must be an efficient causal connection between the negligence complained of and the injury, and that connection must be a natural and continuous sequence unbroken by any other cause. If the sequence be broken, then there is no causal connection, hence no legal connection, between the alleged negligence and the injury.

In Billingsley v. Illinois Central R. Co., 100 Miss. 612, 624, 56 So. 790, 791, it was said by our court in regard to the crossing signals by railroads: "The purpose and object of requiring these crossing signals to be given is to warn persons who are about to cross the track, or those whose teams are so near the crossing as, reasonably and naturally, may be expected to become frightened by the train, and thus give the parties an opportunity to get the team away from the track." As said by the Supreme Court of Appeals in Etheridge v. Norfold, etc., Co.,143 Va. 789, 799, 129 S.E. 680, 682, the purpose of such a statute is "not to impose an unconditional penalty on railroads, but to protect the public." There is perhaps no principle more universally recognized in the law than this: That when either the common law, or a statute or a contract, requires the giving of notice or warning, it is immaterial that the notice or warning was not given, and no actionable wrong is predicable upon the failure to give such notice or warning, when the party has otherwise, within sufficient time, obtained the knowledge which the notice or warning would have furnished, leaving aside those cases where the notice must be served in writing.

It was therefore simply the requisite application of the principle last stated when the court further said in the Billingsley case, supra: "While the defendant was negligent in failing to give the signals for the crossing as required by law, the plaintiff cannot complain, because she saw the train long before it reached the crossing, and there was no causal connection between the failure to give the signal and the plaintiff's injury," and so it was said and reaffirmed in Yazoo, etc., R. Co. v. Cox, 132 Miss. 564, 570, 97 So. 7, 8: "The failure to sound these alarms for the crossing was not the proximate cause of the injury to the plaintiff, for the reason that he saw the approaching train before it reached the crossing, and therefore there could be no causal connection between the failure to sound these alarms and the injury to plaintiff." And these holdings are within the primary principles first above stated, for when appellant's decedent, the driver of the automobile, saw the train, and this in time to have avoided going upon the track, the connection between the failure to give the signals and the injury was broken, cut off, fenced out, insulated, and thereupon the sole proximate cause became the negligence of the automobile driver in the attempt to beat the train across the crossing.

But it is argued that this effort of the deceased driver was contributory negligence merely — a misjudgment on her part as to whether she could beat the train across. The enactment of the statute abolishing contributory negligence in personal injury cases and establishing the doctrine of comparative negligence — more properly to be called concurrent negligence — was a just and timely advancement in our laws, but unfortunately it has led to some confusion in judicial decisions and much more in the arguments advanced in negligence cases. But this confusion would disappear if there were always firmly held in mind the distinction between the right, on the one hand, to maintain the action, and the amount of the damages on the other. In order to establish the right to maintain the action, the burden is on the plaintiff to show that there was a negligent act or omission by the defendant, and that this negligence was a proximate cause of the injury, or a cause which proximately contributed to it; whereas in regard to contributory negligence, the burden of proof is on the defendant, and does not come into play at all unless the plaintiff has on his part sustained the burden as to the proximate cause. And since, as held in our previous decisions, to which we adhere, there was under the verdict of the jury in this case no causal connection between the failure to give the signals and the subsequent injury, and therefore no proximate cause shown as against the defendant either solely or by way of contribution, all arguments in respect to contributory negligence on the part of the plaintiff disappear as having any legal pertinency, they have no available place in the case.

It has been urged that had the statutory signals been given, the driver of the automobile might have become earlier aware of the approach of the train, and might have taken some safer course than that actually pursued. Let us examine that contention in the light of the facts shown in evidence. Appellant's principal witness testified that the driver stopped the automobile immediately within the stop sign, and about forty-five feet from the railroad track and there looked in each direction for trains. At what safer point could she have stopped? This witness testified that the driver, while proceeding thence at a rate from five to ten miles an hour, looked again when about twenty feet from the track. This was still a safe point, for the testimony is undisputed that the brakes of the automobile were in perfect condition, and at the stated rate of speed the car could have been stopped within five or six feet. The day was clear, the sun was shining, the evidence is that the train was clearly visible either at the point forty-five feet from the track or at twenty feet therefrom. It was at one or the other of these points, according to the verdict of the jury, that the driver saw the train, and at either of them she had ample time to avoid going upon the track — she was in a safe place at either of these points. We may therefore inquire what safer course is in mind in the argument that had the driver been earlier warned she might have taken some safer course? Is it that she might have earlier speeded up so as to outrun the train to the crossing? Are courts to so mold their opinions, and so construct their decisions as to invite travelers into attempts to do that?

Fortunately, so far as our present task of decision is concerned, the argument that had the signals been given, the injured person might have become earlier aware of the train than the time he or she actually saw it, and might have done this or that, has already been answered and disposed of in the Billingsley case, supra. The injured person stressed that very point in that case, and to it the court answered: "It is urged with great ability and ingenuity that, if these signals had been given, the mother would have gone in search of her child earlier — in ample time to have rescued the child, and have removed herself from danger. In the argument of this proposition, the able and astute counsel for appellant place themselves upon the springboard of imagination, and leap into the realm of conjecture. Their argument upon this proposition is conjecture, pure and simple; and in such an instance ``experience becomes an infant and speculation a contingency.' Judgments of courts and verdicts of juries should not rest upon so airy a foundation." And this is the same response which other courts have given to the same argument, as for instance, in Hickey v. Railroad (C.C.A.), 8 F.2d 128, 130.

We have carefully examined the other assignments of error and are in no disagreement that, upon the record here presented, there is no reversible error in them.

Affirmed.