* Corpus Juris-Cyc. References: Appeal and Error, 4CJ, p. 1241, n. 40; Railroads, 33Cyc, p. 810, n. 81; p. 811, n. 86; p. 907, n. 60. This is the second appearance of this case in this court. The suit is for the recovery of damages for a personal injury sustained by the appellee for which he claims the appellant is responsible.
The original declaration contained four counts, all of them setting forth in substance that the appellant owns and operates a railroad running through the town of Philadelphia, at which place, in addition to its main track and others, it has a side track running parallel with the main track, about seventeen yards therefrom, the appellant's depot being located between it and the main track. On this side track the appellant places cars containing freight to be unloaded by the consignees thereof. A public road crosses the railroad track a short distance north of the depot.
On the occasion in question a car containing "horse feed and other articles" was on the side track, north of the crossing, and about eighty-five yards from the depot. The appellee drove a wagon drawn by two mules and two horses to the car, and at the instance of the consignee, was preparing to place a portion of the contents of the car in the wagon, when the horses became frightened at a train approaching from the south, and while the appellee was endeavoring to control them, one of the mules was thrown down and on the appellee, breaking his leg.
The first count alleges the failure of the appellant's servants in charge of the train to sound the whistle or ring the bell continuously as the train approached the crossing, as required by section 4045, Code of 1906, now section 1, chapter 320, Laws 1924 (Hemingway's 1927 Code, section 7964). *Page 137
The second count alleges that the train was running at greater speed than six miles per hour.
The third count alleges that the engineer and fireman failed to exercise due care to prevent injury to the appellee, after seeing that the horses were frightened, and that he was in peril.
The fourth count seems to set forth the three acts of negligence complained of in the other counts.
On the first trial the case was submitted to the jury on the second and third counts, resulting in a verdict for the appellee. The case was then brought to this court by the appellant, and reversed, because of the submission of the case to the jury on the second count of the declaration. G., M. N.R.R. Co. v.Hardy, 137 Miss. 608, 102 So. 66.
On the return of the case to the court below a fifth count was added to the declaration, which alleges:
"That in operating engines or trains along the said main line, common prudence and ordinary care requires that a careful lookout be maintained ahead of such engines or trains as the same approaches the place provided by the defendant for unloading cars, and that the said engine or train be there operated at a slow rate of speed, and under easy control, and without any unnecessary noise or the making of sounds calculated to frighten horses; and a failure to so operate such engines or trains is dangerous and calculated to cause the death or great bodily harm to those engaged about such unloading as is required by the defendant;" that "the defendant did negligently, carelessly, and in wanton disregard of the rights and safety of this plaintiff, run and cause to run the said train and engine along the said main line approaching the said point where this plaintiff was working, at a high and dangerous rate of speed, and without keeping a careful or constant lookout ahead of said train and engine, and without having and keeping the said train and engine under easy control, and while the said *Page 138 train and engine were making unnecessary sounds and noises calculated to frighten horses," by reason of which the horses were frightened and the appellee was injured.
According to the evidence for the appellee, the train approached from the south, running at about twelve or fifteen miles an hour without the sounding of either bell or whistle. His attention was attracted to the approaching train just as the engine passed the depot by his horses becoming frightened thereat. He then left the car, walked on the tongue of the wagon to a mule on which there was a saddle on which he rode in driving the team, and got on the mule for the purpose of controlling the team, when the two front horses swerved around the car, throwing the saddle mule down and on the appellee. The train stopped after or about the time the mule fell, and when the engine was even with the appellee, at which time steam began to escape from the engine.
According to the evidence for the appellant, the train approached and passed the depot in the usual and ordinary way, and without any unusual or unnecessary noise. The signal for the station was given by sounding the whistle, and the bell was ringing as the train approached the crossing. The speed of the train was less than that stated by the appellee; the engineer saw the team and the fright thereof just after passing the depot, and then did all he could to stop the train, and succeeded in stopping it when the engine was something over halfway from the depot to the car the appellee was unloading. The engineer and the fireman then left the engine, and went to the appellee's assistance. The escape of steam when the engine stopped was from the automatic safety valve, over which the engineer had no control.
A witness who testified on the second, but not on the first trial, stated that he heard the train approaching before it reached the depot, warned the appellee thereof, *Page 139 and advised him to move his team, but he declined to do so. This the appellee denied.
On the second trial the court granted the appellee an instruction based on the third count of the declaration, and another based on the fifth count thereof. Several instructions asked by the appellant were refused, among which are the following:
"(1) The court charges the jury to find for the defendant."
"(3) The court instructs the jury for the defendant that under the law in this case you should not consider any evidence as to the failure of the defendant to blow the whistle and ring the bell, or either, but, on the other hand, the court instructs the jury that, even though you may believe from the evidence that the whistle was not blown nor the bell rung, these facts cannot be considered as negligence on the part of the defendant."
"(5) The court instructs the jury to find for the defendant under the fifth count in the declaration.
"(6) The court instructs the jury for the defendant that, if you believe from the testimony that the engineer did all in his power to prevent the injury to the plaintiff after seeing him in a position of danger, then under your oaths you must return a verdict for the defendant."
On the former appeal this court held that the appellant was not entitled to a directed verdict for the reason that the evidence presented a case for the jury under the third count of the declaration (G., M. N.R.R. Co. v. Hardy, 137 Miss. 608, 102 So. 66); and since the evidence on the second trial, in so far as the appellant's right to a directed verdict is affected thereby, was the same as that on the first, the opinion on the former appeal controls here, consequently the court below committed no error in declining to direct a verdict for the appellant.
The appellee was in no danger of being injured by the appellant's trains on its main track other than the way in which his injury in fact occurred; that is, by his *Page 140 team becoming frightened at a passing train. The question then is, What duty, if any, did the appellant owe the appellee to prevent his team from becoming frightened at one of its passing trains?
When the appellant set apart the track, on which the car stood which the appellee was unloading, for use by consignees in unloading freight from its cars, it did not thereby divest itself of the right, nor relieve itself from its duty to the public, to continue the running of its trains, and thereafter it had the undoubted right, and was under the duty to the public to continue, to run its trains in the usual and ordinary way, of which the appellee must have been aware, and with the knowledge of which he must be charged. The only duty, therefore, which the appellant's servants in charge of its train on the occasion in question owed to appellee before discovering his peril, was not to run the train in such an unusual manner, or to cause it to make such unnecessary noise, as would be calculated to frighten animals near the track. This duty was not violated by them; for, when the train approached the car which the appellee was unloading, it was running in the usual and ordinary way, without unusual or unnecessary noise. Consequently, there was no issue under the fifth count of the declaration to be submitted to the jury. Coleman v. Wrightsville, etc., R.R. Co., 114 Ga. 386, 40 S.E. 247; compare N.O., J. G.N.R. Co. v. Bailey,40 Miss. 395, wherein the person injured was in a car on a side track when it was switched from its position by the servants of the railroad company without his being advised of their intention so to do.
If the bell was ringing, as the engineer and fireman testified that it was, as the train approached the crossing, the appellee cannot complain thereat, for the statute so required. The escape of steam from the engine's automatic steam safety valve did not cause the fright of the team; for the team became frightened as soon as the *Page 141 engine passed the depot, and the steam did not begin to escape until the train stopped. It also seems reasonably clear from the evidence that when the steam began to escape the mule had already fallen, and the appellee's injury had been inflicted. Be that as it may, an automatic steam safety valve is a necessary appliance for a steam engine, and the noise of steam escaping therefrom is unavoidable.
If the appellant's servants failed to ring the bell or sound the whistle as the train approached the crossing, as required by section 4045, Code of 1906, now chapter 320, Laws 1924 (Hemingway's 1927 Code, section 7964), such failure cannot aid the appellee, for that statute was enacted for the benefit of travelers on a highway or street. Y. M.V.R.R. Co. v. Cox,132 Miss. 564, 97 So. 7.
The only negligence of which the appellant's servants can here be held to have been guilty is that they did not exercise due care to prevent injury to the appellee after they discovered his peril, which on the evidence, under the decision on the former appeal herein, was a question for the jury.
It follows from the foregoing views that the court below erred in granting the appellee an instruction based on the fifth count of the declaration, and in refusing the appellant's third, fifth, and sixth instructions.
Reversed and remanded.