The judgment of the court below was reversed on a former day of the present term and the cause remanded, and the appellees have suggested that we erred in so doing.
The suit is by the appellees against the appellant for the death of Reuben Mann, who was struck and killed by one of the appellant's trains while he was crossing one of its railroad tracks. The ground of the reversal as outlined in the opinion then rendered was that the cause of action sued on is the alleged neglect of the appellant's employees to obey their statutory duty to sound a bell or whistle when one of its trains was approaching a highway which crosses the railroad track, which cause of action was not sustained by the evidence; it appearing therefrom that the crossing at which Reuben Mann was killed was not a public crossing within the meaning of our statutes dealing therewith. The appellees now suggest that the cause of action sued on is the violation by the appellant's employees of the duty which the common law imposed on them because of the dangerous character of the crossing to signal the approach of the train thereto, and the allegations of which they say is supported by the evidence.
The declaration is inartifically drawn and defectively states a cause of action arising either under the statute or at common law. The declaration was not demurred to, and no motion to make it more specific was made.
For the sake of the argument, we will assume that under section 808, Code of 1906, Hemingway's Code, section 596, the declaration is sufficient to support a verdict for common-law negligence.
At common law "a railroad is bound to exercise reasonable care in the operation of its trains and to avoid injury to persons and animals at all crossings, private as well as public; and if by reason of peculiar or extraordinary circumstances surrounding a crossing and known to the trainmen ordinary prudence would require an *Page 786 alarm or signal to be given by an approaching train, then its omission is negligence. The question is one for the jury to determine on common-law principles." 27 R.C.L. 1004. Of course, if it is manifest from the evidence that the only inference that can be drawn therefrom is one of negligence on the part of the railroad or its employees, the court may so declare as matter of law. Railway Co. v. McCoy, 105 Miss. 737, 63 So. 221.
The crossing here in question was in the village of Tishomingo and, though neither a highway nor a street, was frequently used by pedestrians and vehicles, which fact was known to appellant's employees in charge of its trains. The crossing is at a point where the railroad track runs through a deep cut, the exact depth of which does not appear, and the crossing itself on each side of the street is therefore necessarily also in a cut, and one approaching the track over the crossing cannot see a train thereon until he is within a very few feet of the track, and the employees in charge of the approaching train cannot see him until he is practically on the track. When Reuben Mann was struck by the appellant's train, he was driving a wagon over this crossing, and it is clear from the evidence that he went upon the track without stopping and without either looking or listening for the approach of the train. The approach of the train was not signaled by either bell or whistle, and when the engineer thereof discovered that Mann was on the track it was too late for him to prevent the train from striking Mann. The engineer of the train testified that "the bell was turned on just before they told me there was a wagon approaching the crossing," but that was too late for it to serve the purpose of warning Mann or others of the approach of the train. Under these circumstances, assuming that the declaration states a cause of action at common law, though defectively, it was for the jury to say whether or not the appellant's employees should have signaled the approach of the train to the crossing. *Page 787
One of the instructions granted the appellees by the court below is as follows:
"The court charges the jury for the plaintiff that if you believe from a preponderance of the evidence that the employees of the railroad company negligently ran its train at and upon the crossing at an unreasonable rate of speed, or that the said employees negligently failed to give reasonable signals by the timely ringing of a bell or the blowing of a whistle, and that such negligence, if any, proximately contributed in whole or in part to Reuben Mann's injury and death, then you should find for the plaintiff whether this crossing was public or private."
The speed at which this train approached this crossing is material only in considering the distance therefrom at which the signals, if such were required, should have been given, and whether or not there was any duty on the appellant's employees to signal the approach of the train was for the determination of the jury. This instruction assumes that their duty was so to do and submits to the jury the question only of their negligence in discharging that duty. The question which should have been submitted to the jury was whether or not, under the circumstances, it became the duty of the appellant's employees to signal the approach of the train.
Another instruction granted the appellees charged the jury that they must assume that, "in the absence of evidence to the contrary, Reuben Mann exercised reasonable care to ascertain whether or not a train was coming before he entered upon the track."
Assuming for the sake of the argument, but only therefor, that there is such a presumption of law as is here sought to be invoked, the instruction should not have been given, for it is manifest from the evidence that if Reuben Mann had looked he must have seen, or if he had listened he must have heard, the approach of the train, and that consequently he did neither. *Page 788
It follows from the foregoing views that we committed no error in reversing the judgment of the court below and remanding the cause, but since the defect in the declaration referred to herein as well as in our former opinion may be cured by amendment, the former opinion will be withdrawn and the reversal will be rested on the views herein expressed.
The suggestion of error will be overruled.
Overruled.