BUFFINGTON v. GULF S.I.R. CO

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Docket Number

No. 33713.

Attorney(S)

A.W. McRaney, of Magee, and Edwards Edwards, of Mendenhall, for appellant. The court erred in granting the appellee a peremptory instruction. Trial court must assume as true testimony of party against whom peremptory instruction is requested, and draw all favorable inferences for such party which jury might reasonably draw. M. O.R. Co. v. Clay, 125 So. 819, 156 Miss. 463; Lowe v. M. O.R. Co., 116 So. 601, 149 Miss. 889. Testimony tends to prove particular fact when it has logical reasonable tendency to prove it or lead to and establish such fact. Fatheree v. Griffin, 121 So. 119, 153 Miss. 570. The degree of proof necessary to entitle a party to a peremptory instruction is very much greater than that necessary to entitle him to a verdict of a jury. Alabama Great So. R.R. Co. v. Daniell, 66 So. 730, 108 Miss. 358; Porter v. Nesmith, 124 Miss. 517, 87 So. 5. Jury are sole judges of credibility of witnesses and weight to be given evidence. Hemming v. Rawlings, 144 Miss. 643, 10 So. 118. Where there is a conflict in the evidence, question of veracity and credibility are for the jury alone. G.M. N.R. Co. v. Seymour, 148 Miss. 456, 114 So. 35. As to the question of the knowledge of the crossing on the part of the deceased, Buffington, we cite the following: "Plaintiff's knowledge of the defective condition of a street did not necessarily preclude his recovery for an injury received therefrom as it was then a question for the jury as to whether, when using the street, he exercised ordinary diligence commensurate with such knowledge. In a suit for injuries sustained by reason of a defective street, although plaintiff had knowledge of such defect, his testimony that he was in the exercise of proper care at the time of the injury was sufficient to carry the case to the jury." Birdsong v. Town of Mendenhall, 52 So. 795. E.L. W.W. Dent, of Collins, Lucius E. Burch, Jr., and Clinton H. McKay, both of Memphis, Tenn., and E.C. Craig and V.W. Foster, both of Chicago, Illinois, for appellee. We submit that the reason assigned by the trial judge for directing the verdict is a valid one, but whether it is or not, his action in so doing should be upheld if there is any ground on which to sustain it. Covington Co. v. Morris, 112 Miss. 495. Speculation and conjecture furnish no basis for liability. What plaintiff relies on to prove the essential fact in the case is nothing more or less than the opinion of Buffington as to where and how he was injured which opinion was formed the morning after the alleged occurrence. Such evidence could not form the basis of liability. It is an admixture of fact and opinion based entirely upon conjecture, surmise, guess and speculation. Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; C. G.R.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; N.O. N.E.R. Co. v. Holsomback, 168 Miss. 495, 151 So. 720; Y. M.V.R. Co. v. Green, 167 Miss. 143, 147 So. 333; Berryhill v. Nichols, 171 Miss. 769, 158 So. 470; Y. M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Mutual Ben. Health Acc. Assn. v. Johnson, 186 So. 297; Anderson v. Telephone Co., 86 Miss. 352. We do desire to call the court's attention to the fact that there is not a line in the evidence that the crossing could not be safely negotiated by persons in the exercise of due care, or that it was not as reasonably safe for pedestrians as the graveled road itself. This, we submit, is the true test, and there is nothing to go to the jury until there is evidence tending to show that injury to pedestrians using it might reasonably be anticipated even though such pedestrians used due care for their own safety. It is not enough to take the case to the jury simply to show that there was a hole in the crossing where a plank had rotted out. The following cases are absolutely determinative of the instant case: Bentz v. Louisville N.R. Co., 184 So. 448; City of Hazlehurst v. Matthews, 180 Miss. 42, 176 So. 385; City of Meridian v. Crook, 109 Miss. 700, 69 So. 182, L.R.A. 1916A 482; City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Town of Union v. Heflin, 104 Miss. 669, 61 So. 652. In the case of Bentz v. Louisville N.R. Co., 184 So. 448, decided December 15, 1938, where a pedestrian stumbled while walking over a railroad crossing, it is said: "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." McComb City v. Hayman, 124 Miss. 525, 87 So. 11; I.C.R. Co. v. Bloodworth, 166 Miss. 602, 145 So. 333. There is no causal connection between alleged injury and injury and death sued for. Reed Emerson, "Relation Between Injury and Disease," page 162; Kramer Service, Inc. v. Wilkins, 186 So. 625; Watkins v. Bd. of Alderman of the Town of Port Gibson, 113 Miss. 38.

Judges

Griffith, J., delivered the opinion of the court.Page 136

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BUFFINGTON v. GULF S.I.R. CO.

1. RAILROADS.

A railroad must exercise reasonable care to so maintain a public crossing that it may be reasonably safe for use of persons who in such use exercise reasonable care for their own safety, but railroad need not maintain a crossing whereat no injury is possible.

2. RAILROADS.

Where pedestrian admitted that he walked upon railroad crossing in the dark without a light and could not say with certainty what caused his ankle to turn or where, upon the crossing, the accident occurred, and where evidence did not show that crossing was such that it could not have been safely used by person who was in exercise of reasonable or ordinary care, directed verdict for railroad was properly granted.

Griffith, J., delivered the opinion of the court.Page 136

Appellant's decedent, during his lifetime, had instituted an action against appellee for an alleged injury to decedent's ankle because of an asserted defect in a grade crossing at a point where a public highway passed over appellee's railroad tracks. The action was revived and prosecuted by appellant as administratrix.

A railroad company is not required to maintain a crossing whereat no injury is possible. The rule is similar to that in regard to municipal streets, and thus the obligation of the railroad company is that it shall exercise reasonable care to so maintain a public crossing that it may be reasonably safe for the use of persons who in such use exercise reasonable care for their own safety. City of Greenville v. Laury, 172 Miss. 118, 159 So. 121; Bentz v. Louisville N.R. Co., Miss., 184 So. 448.

There is no substantial evidence in the record sufficient to support a verdict that the crossing was such that it could not be safely used by a person who was in the exercise of reasonable or ordinary care. Moreover, the decedent in his deposition, taken shortly before his death, admitted that he walked upon the crossing in the dark without a light and was unable to say finally with such dependable definiteness as is required by the standards of the law, what it was that caused his foot to turn, or where it was, save that it was somewhere on the crossing. There was no other witness present.

The trial judge was correct, therefore, in granting the request for a peremptory charge.

Affirmed.

BUFFINGTON v. GULF S.I.R. CO.

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