Opinion
No. 33407.
November 21, 1938.
1. RAILROADS.
Evidence that piece of rock or road material stuck up 2 1/2 or 3 inches above street level near railroad crossing where there was no sidewalk, that plaintiff had traveled that way frequently several times each week, and that others traveling there had not noticed projecting road material until plaintiff stumbled over it and was injured, was insufficient to justify recovery against railroad for negligence in maintenance of crossing.
2. RAILROADS.
A railroad is no insurer of safety of streets at its crossings, but is under duty merely to use reasonable care to make such places reasonably safe for persons exercising ordinary care for their own safety.
APPEAL from the circuit court of Harrison county; HON.W.A. WHITE, Judge.
Bidwell Adam, of Gulfport, for appellant.
We unhesitatingly say that the learned court below committed fatal error in granting the peremptory instruction because the plaintiff herself testified that she stumbled upon a rock on the Clark Street crossing of the railroad company and sustained injuries, that the rock was projecting two or three inches, and that it was about that much. She further stated that she had skinned her knee, her arm, and her elbow. This, we think, was a question of fact.
It is not necessary to state that the railroad company owes the traveling public, whether they be occupants of automobiles driving over the crossing or pedestrians, a duty to maintain and keep its crossings in a reasonably safe condition. We think that this is elementary, and that it is not necessary to cite authorities for our position on this point.
We have no desire to burden the court with citing countless cases in supporting of our contention, and we shall content ourselves with citing a very few cases. We wish to call the court's attention to the case of Gulf Ship Island Railroad Co. v. Saucier, 104 So. 180, the court held: "A railroad is under the legal duty to keep its tracks and roadbed, where it is crossed by a public highway, in a reasonably safe condition for public travel, and, if it negligently permits such crossing to become dangerous and unsafe, it is liable for the injuries proximately caused thereby."
White Morse, of Gulfport, and Smith Johnston and Chas. B. Arendall, Jr., all of Mobile, Ala., for appellee.
Railroad companies are not required to construct or to maintain the public highways of the county other than where interfered with by the construction of their roadbeds and to perform the grading required for convenient approach to such crossing.
Gulf C.R. Co. v. Sneed, 84 Miss. 252, 36 So. 261; Section 6127, Code of 1930.
In order to constitute negligence for permitting an obstruction it is necessary to show that the obstruction existed for sufficient time to have been discovered by the defendant, its servants or employees, in the exercise of reasonable care.
Meridian Terminal Co. v. Stewart, 143 Miss. 523, 108 So. 496.
In Mississippi cases where it has been held there is liability, the defect was either at the point where the track intersects the highway or on a grade made necessary by the crossing of the track.
Gunter v. Y. M.V.R. Co., 145 Miss. 475, 111 So. 105; Miss. Central v. Alexander, 169 Miss. 620, 152 So. 653; G. S.I.R. Co. v. Saucier, 139 Miss. 497, 104 So. 180.
A jury should not be allowed to speculate without evidence, and remote possibilities do not constitute negligence.
I.C.R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333.
Argued orally by Chas. B. Arendall, Jr., for appellee.
The appellant, plaintiff in the court below, brought suit against the railroad company because of an injury sustained by her in stumbling over a rock alleged to have protruded several inches above the level ground at the Clark street crossing in Pass Christian, Mississippi. It appears that while the plaintiff was crossing the street at this point, where there was no sidewalk, she fell, bruising her knees and elbow, as she claims. There was testimony to the effect that in the highway near the railroad crossing a piece of rock or road material stuck up out of the ground two and a half or three inches, embedded in the traveled way of the street; that the plaintiff had traveled this way frequently, several times each week, and that others had so traveled it; and that none of them had noticed the projecting road material until the plaintiff stumbled over it. The servant of the railroad whose business it was to look after such matters was related to plaintiff, being her son-in-law. It also appears that she had, on a number of occasions, brought suits for personal injuries against various defendants. At the conclusion of the evidence in the case the trial judge granted a peremptory instruction for the defendant company.
It does not appear to us that the proof makes out a case of negligence against the railroad company. It seems that the traveling public, among whom was the plaintiff, had passed over that road frequently, and no one had noticed the presence of this projecting rock. Comparing the proof in this case with that in several cases in which we have held that no liability was established by the absence of a brick in a sidewalk, or some slight obstruction in the street, the proof here is insufficient to show that the company had not exercised reasonable care to make the passing way reasonably safe. It is no insurer of the safety of streets at its crossings, but is under the duty merely to use reasonable care to make such places reasonably safe for persons exercising ordinary care for their own safety.
The judgment of the court below is affirmed.
Affirmed.