Hamline v. Southern Railway Co.

Woods, C. J.,

delivered the opinion of the court.

By §3555, code of 1892, it is made the duty of a railroad company, where its road is constructed so as to cross a highway and it becomes necessary to raise or lower the highway, to make proper and easy grades in the highway, so that the railroad may be conveniently crossed, and to keep such crossing in good order; and it shall be the duty of the company to-erect and keep in order all bridges on any highway at such, points as bridges may be necessary to cross the railroad.

This same duty, in identically the same terms, was imposed on railroad companies by § 1053, code of 1880, and was in, force when the Georgia Pacific Railway Company, whose assignee and successor the defendant is, was chartered and organized and when its railroad was constructed through the city of West Point and the grade of Division street raised by the’ Georgia Pacific Railway Company.

In addition, the act of incorporation of said railway company, in its second section and third paragraph, actsof 1882, page 826, confers upon the railway company the right to “cross, occupy and use any public road in this state with its railroad and to- *415 change the public road, but in all such cases it shall place such road or highway in a condition as that so used, occupied or changed.

The principal question raised by the demurrer of the defendant is, does the term highway in the statute and charter of the Georgia Pacific Railway Company include streets in cities and towns as well as public roads in the country districts ? The contention of counsel for the defendant railway company is that the word highway, in the connections used in the statute and charter, is to be confined to public roads in the country, and this contention is made to rest on the construction placed by this court upon the word highway in other sections of the chapter of our code touching the rights, duties and liabilities of railroad corporations.

In the case of M. & O. R. R. Co. v. State, 51 Miss. (§2424, code 1871, which is found brought forward in § 1050, code 1880, and in § 3552, code 1892), it was held not to embrace streets in towns and cities. These sections required railroad companies to erect and keep up on a post or frame, sufficiently high, at every place where the railroad may cross a highway, a board with the inscription, “ Look out for the locomotive ! ” But this construction of the statute was not placed upon the ground that the word ‘ ‘ highway ’ ’ did not include a street in a town or city, but upon the distinctly stated ground that the legislature had, in § 2421, code 1871, sufficiently and otherwise than by § 2424, provided for the security and protection of life in crossings in towns and cities. In other words, the court was of opinion that § 2424, in its use of the term highway, had no reference to streets, because, by another and independent section (§ 2421), security at crossings in cities and towns was sufficiently provided for.

In Railway Co. v. French, 69 Miss., 125 , the word highway, in § 1048, code 1880, was held not to embrace streets in a town, but the reason assigned for confining that section to roads in the country was precisely that upon which the court proceeded in the case of the M. & O. R. R. Co. v. State, 51 Miss., viz., *416 that § 1047, code 1880, which is § 2421, code 1871, was a sufficient safeguard for towns. In both of the cases named, the low rate of speed at which trains are required to run through towns and cities, with the penalty imposed for violation of the low-speed requirement, was held to afford all the protection necessary in cities and towns, while the unlimited rate of speed in the country demanded the lookout sign and ringing of the bell, or sounding of the whistle, in road crossings in the country.

The other case referred to and relied upon by the defendant railway’s counsel (I. C. Railroad Co. v. State, 71 Miss.) gives no support to his contention. That case was decided under § 3551, code of 1892, which denounces a penalty against every railroad company which, upon stopping a train at a place where such railroad shall cross a highway, shall not uncouple its cars so as not to obstruct travel on such highway for more than five minutes, and then declares, further, “ and it [the railroad company] shall, upon stopping a train at a place where the railroad is crossed by a street, so uncouple its cars as not to obstruct travel thereon for a longer period than shall be prescribed by ordinance of the city, town or village. ’ ’ Here are separate and distinct provisions governing the stoppage of trains in the country and in towns. The court held, of course, that the word “highway,” in the first provision of the section, related alone to country highways, and that the town of Batesville, for the obstruction of one of whose streets the prosecution was made, had no ordinance prescribing the period within which cars should be uncoupled so as not to obstruct travel on the street, the railroad company was not liable, under the second clause of the section.

It will thus be seen that none of our former adjudications touch the question now presented. The reasoning of the court in these cases has and can have no application here. Sec. 1053, code of 1880, and § 3555, code of 1892, stands unaffected by any other section of either code touching the duty of railroad companies to properly construct their roads over streets in *417 towns and cities. These sections are the only statutes having any sort of relation to highways in town or city or country. Can it be seriously doubted that the word “highway” is comprehensive enough to embrace streets in towns, as well as roads in the country ? And can it be doubtful at all that in densely populated towns and cities the reason of the statute requiring railroad companies to make proper and easy grades in the streets crossed by their railroads, so that the same may be conveniently crossed, is infinitely more needful than in sparsely populated country districts, where the roads are used only at longer or shorter intervals of time ? It is most unreasonable to place such construction on the statute as will require railroad companies to make and keep in order proper and easy grades over infrequently used country roads, but permit them to tear up and practically destroy the streets of cities or towns where the travel is constant. We must give the statute such interpretation as will effectuate the legislative purpose in its enactment, if we can do so without violence to its letter and spirit, and we do neither in declaring that streets in towns and cities, as well as public roads in the country, are within the terms of the statute. If we look beyond our own reports, we shall find very many decisions of courts of last resort in other states construing statutes similar to our own, and they all speak with one voice, so far as we have been able to ascertain. A large number of these cases, holding to the view we have taken, are collected in the brief of counsel for appellants, and, for the sake of brevity, we refer to them generally, as therein gathered together.

It is not contended before us that any contributory negligence of the deceased is shown by the declaration, nor, in our opinion, is there any shown.

Mevej'sed and remanded.