* Headnotes 1. Railroads, 33 Cyc., p. 1129; 2. Railroads, 33 Cyc., p. 1017. The appellee was plaintiff in the court below and sued the appellant for a personal injury occasioned by a collision *Page 59 between a freight train of the appellant and an automobile belonging to and driven by the husband of the appellee in which she, her husband, and children were riding. The collision occurred at a crossing just south of the town of Doolittle in Newton county, Miss.
The husband of the plaintiff, who at the time of the injury lived in the town of Newton, Miss., had business calling him to Decatur, Miss., on the day in question, which was also the day for holding the Democratic primary election in 1923. Mr. Brown asked the appellee to accompany him on the trip and to carry the children. Just prior to reaching the railroad crossing, a rain came up accompanied by wind, and at the time of the collision the wind was blowing and the rain was falling. Just prior to reaching the crossing where the collision occurred, the plaintiff and her husband in their car met another car which had just come across the railroad track and had stopped to put up the curtains to the car. The husband of the plaintiff testified that he looked in each direction as he approached the railroad crossing and failed to see the approaching train. He testified as to the existence of some obstructions between the public road and the railroad track as he approached the crossing, but was unable to say why he was unable to see the train before he reached the track. The automobile in which the plaintiff and her family were riding was struck by the pilot of the engine of the train and was carried some distance below the crossing. The plaintiff was injured by having one leg broken between the knee and hip, and the other leg was broken just above the ankle, and one of the pelvic bones was fractured and her body greatly bruised and injured. One of her children was killed in the collision and another child injured. The plaintiff was taken to a hospital and remained there for three months, and at the time of the trial she was still suffering from her injuries. One of plaintiff's legs was about an inch shorter than the other because of the injury, *Page 60 and there also developed a difference in the size of the leg. There was also permanent injury to the hips.
Plaintiff's witnesses, of whom there were a number, testified that the train failed to blow its whistle or ring the bell on approaching the crossing. A number of persons' attention was attracted to the train, some of whom are positive that the whistle did not blow and that the bell was not ringing on approaching the crossing. Others testified that they were in position to hear and did not hear the whistle blow or the bell ringing.
The crew on the train testified for the defendant that they did blow the whistle at the whistling board one thousand seventy feet north of the crossing, and that the bell was set to ringing automatically within a few feet of the whistling board, and that it was kept ringing until the crossing was passed. The engineer of the train testified that he set the bell to ringing not exceeding one hundred feet from the whistling board, and that he turned off the automatic ringer just before he reached the crossing, but that the momentum of the bell kept it ringing until the engine had crossed the crossing. The automobile in which the plaintiff and her husband and children were riding approached the crossing from the east traveling in a northwesterly direction, while the railroad track ran north and south and the train was approaching from the north. The engineer was on the west side of the locomotive, and the head brakeman was on the east side thereof, and the fireman was shoveling coal into the fire box of the engine while the train was approaching the crossing, and consequently the fireman was not keeping a lookout. The head brakeman was sitting in the engine cab using a piece of waste to wipe off the glass, and was trying to see out, but was unable to see anything on his side owing to the fact that the steam from the engine on the inside and the rain on the outside kept the glass blurred so they could not see through it. The wind and rain came from the southeast. The train approached the crossing, according to the railroad employees, at about *Page 61 twenty-five miles an hour, and according to other witnesses at about thirty to thirty-five miles an hour. According to the employees of the railroad company in charge of the train, it was necessary to keep the speed up in order to go up a grade beyond and to the south of the crossing, the crossing being on a downgrade of the track, but some distance beyond there was a rise, and it was customary to approach this rise with considerable speed.
The plaintiff's husband testified that he looked to the north and to the south as he approached the crossing; that he was traveling in low gear.
At the time of the collision the plaintiff was looking back at the children on the rear seat of the automobile. It seems that the isinglass in the back of the automobile was broken out and the rain was blowing in, and two of the children were trying to hold a rain coat over the opening caused by the broken isinglass in order to protect themselves from the wind and rain.
The plaintiff on the stand was asked the following questions and answered as follows with reference to what she was doing at the time of the collision:
"Q. Do you recall what the children were doing just before you got to the crossing there where this accident occurred? A. Well, the little boy who was killed and the little Strait boy were standing up there holding the little boy's rain coat over the back of the car. They were standing on their knees.
"Q. You were paying attention to the children? A. Yes, sir; and was after them to sit down.
"Q. And that is what you were doing about the time this accident occurred? A. Yes, sir.
"Q. Mrs. Brown, what, when you were coming up to this crossing, I will ask you to state whether or not you saw or knew that there was a train coming? A. I did not.
"Q. Do you recall what you were doing at that time? A. I don't know whether I do clearly or not. But I was turned this way, in this position, which would have made *Page 62 it kind of away from the train, looking at the children, as I remember.
"Q. Doing something with the children? A. Yes, sir.
"Q. Now, what was the first notice or knowledge that you had that this accident was about to occur? A. Mr. Brown said, `Oh, there is the train right on us.'
"Q. Then it struck? A. It struck before I had time to look.
"Q. From then on until you — well what happened to you then? A. I don't know. . . .
"Q. And as you came on up the road towards Decatur, where did the hard rain catch you? A. The hard rain was while we were under the station.
"Q. Well, it was not raining much then as you approached the crossing? A. I could not say.
"Q. How many times do you suppose you ever crossed over this crossing? A. I could not say; I don't have any idea.
"Q. A great many times, have you not? A. Well, I have passed over it a good many times. . . .
"Q. It was raining though as you approached the crossing? A. I think it was raining. Whether it was raining hard I don't know; I can't say. But I am sure it was raining.
"Q. Now, in your declaration you say that a few moments before you got to the crossing that your husband looked up the railroad, or looked to see about the train, I believe. Did you say that? A. I am pretty sure that I did.
"Q. And did he look to the north or the south? A. My recollection is that he turned toward me, which would have been north.
"Q. And you thought at the time that he was looking to see if there was a train coming? You remember that he looked for a train as you approached the crossing? A. I am not clear on that. *Page 63
"Q. But that is your best recollection? A. That is my best recollection. . . .
"Q. And you remember that it was your best recollection about it as you approached the crossing your husband looked to the north a few moments before he went over? A. That is my best recollection.
"Q. But you, as you approached the crossing, you didn't look yourself? A. I don't have any recollection of looking.
"Q. You didn't listen? A. No, because I was looking after the children.
"Q. And you didn't stop? A. No, I didn't stop, no more than just the car paused to go in low gear.
"Q. But just to pause to go in low gear is all that you stopped? A. Yes, sir.
"Q. That is true, Mrs. Brown; as far as you are concerned you took no precaution whatsoever yourself? A. Well, no; I didn't. Not that I remember of. I usually do, but I don't remember that day.
"Q. Were the boys making any noise? A. Well, they were laughing some.
"Q. Was there a window in the back end of the car? A. Yes, sir.
"Q. Isinglass? A. Yes, sir. It was broken.
"Q. And the little boys were holding something up over that? A. Well, the boys were putting up the rain coat. The little boy that was killed and the other little boy.
"Q. The wind was coming from your back? A. I judge that it was.
"Q. Did your husband have the wind-shield open or closed? A. I don't know.
"Q. Were the curtains up? A. They were, except that my curtain was unfastened at the top and dropped, and the isinglass was broken out of it.
"Q. Well, on your side, you were on the right-hand side? A. I was. *Page 64
"Q. And on your side the curtain was really not up? A. Well, it was practically up.
"Q. I mean in so far as obstructing the view? A. Well, I don't think it was.
"Q. You could not see out north on your side? A. Yes, sir.
"Q. And your husband could see through that same opening, couldn't he? A. I think so.
"Q. And the way you were going you were rather facing the way the train was coming from? A. I was turned; I was not facing the way the train was coming.
"Q. I don't mean you were yourself, because as I understand it you were turned partly around looking back the other way; but I mean the car — A. Yes, sir.
"Q. Your best recollection about it is that, while you did nothing yourself, you remember that your husband looked once before you went up? A. I think I remember that.
"Q. How far do you think it was from the track when he looked up? A. Well, I just don't know. I don't know how to measure distance.
"Q. Well, would you say it was before he went into low gear? A. No, it was about the time that he did go into low gear.
"Q. About the time he went into low gear to go up the ascent? A. Yes, sir.
"Q. And as far as you know, and as indicated in your declaration, he didn't look any more, as far as you know? A. No, sir; until he looked and saw the train.
"Q. Did you ever see the train before it struck? A. No, sir."
The testimony was conflicting as to whether there were obstructions between the public road, and the railroad in the direction from which the train was approaching. The jury were taken to the scene of the accident and the situation was pointed out to them, and they had the benefit of a view of the locus inquo.
Among the instructions procured by the plaintiff were: *Page 65
"Instruction No. 3. The court instructs the jury for the plaintiff that if you believe the plaintiff had no control of the automobile in which she was riding or of the driving of her husband who was operating same, and that he was not acting as her agent or servant, and she was only riding with him as his guest, as his wife and companion, she had a right under the law to rely upon her husband to manage and control the automobile, and she was not required by law to stop before going upon the railroad track, and in this case, even though you believe he was guilty of negligence in failing to see the train, or that he was guilty of negligence in failing to stop and look and listen, his negligence, if any, under the above circumstances, should not by you be imputed to her. And if you also believe the railroad company, through its servants in charge of the engine, were guilty of negligence in failing to keep a reasonable lookout and give the signals required by law, and heretofore set forth in these instructions, before crossing over the highway, and this negligence, if any, approximately contributed, even in the slightest degree, to the cause of the plaintiff's injury, then your verdict, should be for the plaintiff for such amount as warranted by the evidence, and you may believe, from the evidence, she is entitled to receive to compensate her, not to exceed the amount sued for in her declaration."
"Instruction No. 5. The court instructs the jury for the plaintiff that under the law contributory negligence on the part of a person injured, or the contributory negligence of any other person for whom she may be responsible, is no longer a bar to the right of recovery for injuries negligently caused by another, and in this case if you believe from the evidence that the servants of the railroad company failed to give the signals as required by law and set forth in the instructions of the court, and failed to keep a proper and reasonable lookout on approaching the crossing, and if you believe the failure so to do proximately contributed to the cause of her injury, *Page 66 then your verdict should be for the plaintiff; and this is true however slight the degree of contribution may have been; and this is also true even though you may believe the plaintiff or her husband, or both, were guilty of contributory negligence in failing to see the defendant's train, or to stop or look or listen or hear the defendant's train; and this is true however gross you may believe such contributory negligence, if any, to have been.
"Instruction No. 6. The court instructs the jury for the plaintiff that in all actions against railroad companies using engines, locomotives, and cars propelled by the dangerous agency of steam and running on tracks, for damage done to persons at highway crossings, proof of injury inflicted by the running of the engines and cars of such railroad under the law isprima-facie evidence of the want of reasonable skill and care of such railroad corporation in reference to such engines, and in this case, if you believe from the evidence the plaintiff was injured under such circumstances, this makes out a prima-facie case of liability, and this statutory presumption cannot be overthrown by conjecture; the circumstances of the accident must be clearly shown and the facts so proven must exonerate the company from blame; otherwise the railroad company is not relieved from liability, and the presumption controls, and in such case you should find for the plaintiff."
For the defendant, among other instructions, No. 9 was given, which reads:
"The court instructs the jury for the defendant that Mrs. Brown did not have the right to rely upon her husband to ascertain whether a train was approaching when she and her husband approached the crossing. But it is her duty, under the law, to use such precaution as a reasonably prudent person would have used under the circumstances to find out whether a train was approaching. And unless you believe from a preponderance of the evidence that she, herself, used such precaution, *Page 67 then it is your sworn duty to find for the defendant, provided you believe that her failure to use such precaution was the sole cause of the accident."
Instruction No. 11 for the defendant reads:
"The court charges the jury for the defendant that one who sits on the front seat of an automobile with the driver has no right to rely upon the driver entirely, even if the driver be her husband, when approaching or about to cross a place as dangerous as a railroad crossing. On the other hand, you are instructed that it is the duty of such person to look and listen for an approaching train. And if looking and listening will not reasonably assure such person that no train is approaching, it is the duty of such person to stop, or to endeavor to have the vehicle stopped. And if, without remonstrating with the driver, or without looking or listening or stopping or endeavoring to stop the car, if necessary, the car is driven upon the track and struck by a train, then such person so sitting by the driver is guilty of negligence."
The defendant also secured an instruction that, if the plaintiff were guilty of contributory negligence, it was the sworn duty of the jury to diminish any damages to which she might be entitled in such amount as the proportion of her negligence bears to the negligence of the defendant, if any.
Under the evidence in this case, numerous witnesses were introduced by both parties and the facts appear to be disclosed by the evidence. The entire crew of the train testified as to its operation and movement, and numerous witnesses who saw the train as it approached, and some of whom witnessed the accident, testified as to how the train was operated and how the injury occurred.
In our opinion it was improper to invoke the prima-facie statute as was done in instruction No. 6 for the plaintiff set out above. It has often been held by this court that where the facts are in evidence, the jury must determine the negligence or lack of negligence from the evidence and not from the statute. It was especially improper *Page 68 and harmful for the court to instruct the jury that the facts so proven must exonerate the railroad company from blame, otherwise the railroad company is not relieved from liability and the presumption controls.
It is not true that the law requires the facts to exonerate the railroad company from blame. The law requires the facts to be produced, and if the facts are not produced in evidence, the presumption prevails; but when the facts are produced the jury must decide the question from the facts, and unless the facts show negligence the plaintiff does not prevail. If there is a conflict in the facts as testified by the different witnesses, the jury must pass upon the conflict and must determine what the facts are from the evidence. They must decide the question of the veracity of the witnesses so presented. Frequently where the facts are in evidence two or more different reasonable conclusions might be drawn by the jury. In such case it is the duty and province of the jury to apply their minds to the question and to decide which is the more reasonable and probable inference to be drawn from the facts so proven, and they cannot escape this duty of applying their minds to the proposition by adopting the statute as a substitute. The instruction here involved authorized the jury in such case to adopt the presumption of liability. In other words, if all the facts are in evidence and different reasonable conclusions could be drawn therefrom, one favorable to the railroad company and another favorable to the plaintiff, the instruction makes it the duty of the jury to adopt that unfavorable to the railroad company. The statute was intended to have operation only when the facts were not or could not be produced and places the burden upon the company to produce the facts which are generally peculiarly within its own knowledge.
This instruction has been condemned in the following cases: A. V. Ry. Co. v. Thornhill, 106 Miss. 387, 63 So. 674; A.G.S.Ry. v. Daniell, 108 Miss. 358, 66 So. 730; I.C.R.R. v. Gray,118 Miss. 612, 79 So. 812; Hines *Page 69 v. McCullers, 121 Miss. 666, 83 So. 734; Davis v. Elzey,126 Miss. 789, 88 So. 630, 89 So. 666; Davis v. Temple, 129 Miss. 6, 91 So. 689.
Instruction No. 3 for the plaintiff above set out does not correctly announce the law. The wife as the guest of her husband, or any other person as the guest of the driver of an automobile or other vehicle, may not absolutely rely upon such driver. Such passenger must exercise reasonable care according to the circumstances surrounding them at the time for their own safety. The law in reference to the duty of a person under such circumstances has already been stated in the authorities in this state, and this instruction on another trial ought to be properly modified to conform to the pronouncement of this court if it is to be given in any form.
There are other assignments of error, but as the case must go back for a new trial we do not deem it necessary to discuss them now.
Some of the instructions asked by each side ought to be carefully scrutinized and redrafted if intended to be used on another trial. It would serve no useful purpose to comment at length upon them now, as the court on a new trial must pass upon the questions that will then be asked, and we do not know whether the next trial will be exactly on the same evidence or whether the same instructions will be requested.
For the errors indicated, the judgment must be reversed and the case remanded.
Reversed and remanded. *Page 70