* Headnotes 1. Railroads, 33 Cyc., p. 927; On defective condition of railroad crossing as effecting carrier's right to recover for injuries sustained in collision with train, see notes in 14 L.R.A. (N.S.) 312, 20 L.R.A. (N.S.) 426; 22 R.C.L., p. 992; 3 R.C.L. Supp., p. 1299; 2. Railroads, 33 Cyc., p. 927; On care required of driver of automobile at railroad crossing, see notes in 21 L.R.A. (N.S.) 794, 29 L.R.A. (N.S.) 924; 46 L.R.A. (N.S.) 702; 2 R.C.L., pp. 1205-1206; 1 R.C.L Supp., p. 742; 4 R.C.L. Supp., p. 157; 3. Appeal and Error, 3 C.J., section 590; Negligence, 29 Cyc., p. 601; 4. Appeal and Error, 3 C.J., section 590. This is an appeal from a judgment for personal injuries caused by the failure of the appellant to maintain a proper highway crossing.
The declaration alleged that where the line of railroad crosses a public road at the location designated in the declaration that said crossing was defective and unsafe for travel and could not be conveniently crossed with reasonable *Page 504 safety to life and limb, and that it was the duty of the railroad company to maintain such crossing in suitable condition for reasonably safe travel. The declaration alleged that the plaintiff was driving along said highway at a less rate of speed than ten miles an hour in a Fordson ton truck, which had a drum of gasoline on the body or platform of the truck; that on account of the defects in said crossing, the same being worn down to a depth of four inches below the rails of the railroad track, and worn on each side of the vehicle tracks to a width of about two feet, that plaintiff's truck was caused to violently bump or tilt, thereby overturning the drum of gasoline, and plaintiff, in an effort to keep said drum from falling off said truck, lost control of his truck, and said truck ran into a broken culvert along said right of way, thereby causing the plaintiff to be thrown from the truck, and the drum of gasoline to be also thrown from the truck and upon plaintiff's arm, severing it and necessitating an amputation, etc.
There was a plea of the general issue to the declaration but no special plea or notice under the general issue. The testimony of the plaintiff showed that the public highway crosses the railroad track at said point at a somewhat irregular angle, not being at right angles, and that in driving across the railroad track one wheel of the truck would pass over the rail before the other, causing a tilt of the truck, and by reason of the worn out places or holes in the highway the vehicle was violently bumped or tilted, causing the drum of gasoline to rock violently, becoming unbalanced; that the plaintiff was driving and undertook to seize the gasoline drum with one hand and control the car with the other hand, but on account of the defects in the highway the truck ran off of the graveled part of the highway onto the defective culvert, which caused both the plaintiff and the gasoline drum to fall from the truck.
The crossing was not fixed with lumber or substantial material, but the highway was made of gravel between the railroad track and on the sides of the railroad track, *Page 505 and this gravel, being softer than the rails, became worn and made a very rough passage, according to the plaintiff's version. The plaintiff is supported as to the condition of the crossing by a number of witnesses. The defendant contended and offered testimony tending to show that the highway was in good condition at the time of the injury.
On cross-examination of the plaintiff and the witnesses it was proven that the plaintiff failed to bring his truck to a full stop as required by section 3, chapter 320, Laws of 1924, but merely slowed down in crossing the highway crossing. At the conclusion of the plaintiff's evidence, the defendant moved to strike out the evidence and to grant a peremptory instruction for the defendant for the reason, that the proof showed that the fault was solely that of the driver of the truck, and also because the "stop, look and listen" law above referred to was not complied with. The motion was overruled. The defendant offered proof to sustain its contention. At the conclusion of all the testimony, the defendant requested a peremptory instruction, which was refused.
The appellant insists that the judgment is erroneous, because the proof did not make out a case for the plaintiff, and, second, because the verdict was excessive on account of the contributory negligence of the plaintiff, the verdict and judgment being for ten thousand dollars.
Section 3, chapter 320, Laws of 1924, above referred to, provides that it shall be unlawful for any person to drive or propel any automobile or automobile truck or other motor-driven vehicle upon any railroad track at a public highway or municipal street intersecting such railroad at grade crossing without first stopping at a distance of not less than ten feet nor more than fifty feet from the nearest track and looking for trains, making certain exceptions in emergencies, and also provides:
"And in the trial of all actions to recover personal injury or property damages, sustained by any driver of such motor driven vehicles for collision of said vehicle and train in which action it may appear that the said *Page 506 driver may have violated any of the provisions of this act, the question of whether or not the said violation was the sole or approximate cause of the accident and injury shall be for the jury to determine regardless of the penalizing feature of this act. That the violation of this act shall not affect recovery, and the question of negligence or the violation of this act shall be left to the jury; and the comparative negligence statutes andprima-facie statute of our state shall apply in these cases as in other cases of negligence."
The act also makes the failure to observe its provisions a misdemeanor.
It will be seen from a reading of the above statute in connection with sections 502 and 503, Hemingway's Code, chapter 135, Laws of 1910, that the negligence of the plaintiff would not bar a recovery, provided the defendant was also negligent with reference to the matter, and that the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured.
In M. O.R. Co. v. Campbell, 144 Miss. 803, 75 So. 554, it was held that the defense of contributory negligence is always an affirmative defense, and the burden of proof as to it is upon the defendant, and that it was the duty of the defendant, if it desired to have the damages diminished in accordance with the statute, to procure an instruction to this effect. It has also been held by the court that contributory negligence, being an affirmative defense, should be pleaded if relied upon. The same construction was given to the statute (chapter 135, Laws of 1910) in Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459.
The proof for the plaintiff was ample to show that the condition of the highway at the crossing was unsafe for travel by the public. The failure to stop the truck as required by section 3, chapter 320, Laws of 1924, does not under the terms of that act, if it is applicable, bar a recovery. The plaintiff under his evidence was going at a rate of speed permissible under the law, being less than *Page 507 ten miles an hour, and the speed was not the proximate cause of the injury. It may have been a contributing cause. The injury was caused proximately, at least in part, by the negligence of the defendant with reference to maintaining the highway.
There being evidence of negligence on the part of the defendant shown in evidence, and the jury by its verdict having found negligence, and the defendant not having availed itself of its right to have the jury instructed to diminish the damages in proportion to the negligence, if any, of the plaintiff, it is not entitled to avail of it here.
Considering the nature and extent of the injury and the suffering of the plaintiff, the judgment is not so excessive as to authorize the court to set it aside, and the judgment will therefore be affirmed.
Affirmed.