Summary
Appeal from circuit court of Tishomingo county.
Hon. C. P. Long, Judge.
Action by N. B. Mock against Walker D. Hines, Director General (Illinois Central Bailroad Company). From a judgment for defendant, plaintiff appeals.
In March, 1917, the appellant sought to pass from one side of the public street to the other in the village of Holcut, Mississippi, which had an ordinance against blocking the highway by railroad cars for longer than five minutes at any one time. His evidence tends to show that the railroad company stopped its train over the highway and remained there for considerably over five minutes; some making it even as much as twelve or fifteen minutes, and that appellant was actually detained this length of time by the said wrongful blocking. At the end of this time he undertook to pass over the bumpers between the cars, after exercising care to see that no efforts were made to start the train. The train did, however, suddenly start, catch and crush one of appellant’s feet, and did injure him severely.
He brought his suit and demanded judgment of the defendant company for the amount of his injuries, and on the trial of this cause in the circuit court of Tisho-mingo county, Mississippi,' August Term, 1918, he merely proceeded to show his injury by a moving train and the extent of his damage, and then closed as was his right to do under section 1645, Hemingway’s Code 1917.
The appellee railroad company then proceeded to exonerate itself by offering proof which tended to show that they did not block the road for an unlawful, or unreasonable length of time, and were not negligent in any way, and thereupon closed their defense. Then to rebut this evidence offered by the appellees, the appellant- offered the witness Preslay Nixon to prove that the company did block the highway for some ten or'twelve minutes, and offered the witnesses Felker, McAnally, Mock and others to prove the same matters to rebut the defense of the railroad, but for some cause not warranted by good procedure, the trial judge excluded all this evidence and directed a verdict for the defendant, the appellee, here.
The law was pronounced by the above statute, and the citations of authorities thereunder requires nothing, as we construe it and understand it, of a plaintiff than to show actual injury and damage by a running train, and his case is made up and nothing more required of him. The plaintiff took this course in the trial of this cause, which is the regular course in the generally accepted method of procedure under our observation, since we have had such a statute.
Then it was up to the defendant railroad company to exonerate itself, and when it had proceeded and closed, then the plaintiff has a right to rebut and contradict such a defense by competent proof, and is not required as the learned judge says to offer all his proof in chief.
To support this view, we cite, Sec. 1645, Hemingway’s Code 1917, as cited above with authority thereunder; and we cannot understand how this court can afford to allow such a vital error of procedure to contravene and defeat the proper and well established method followed, by the appellant.
The appellant was not called upon to anticipate any of the railroad’s defense, and, while they cross-examined appellant’s witnesses in chief as to some of these propositions that of itself required nothing of the appellant until it bacome necessary to rebut the defendant’s proof.
To cut this off was fatal error, and the cause should be reversed and the proof heard. The learned judge should not have granted a peremptory instruction because some of the evidence developed by them on cross-examination of M. B. Mock and others, tended to show that the railroad company was violating the law at the time appellant was injured, and that such violation contributed proximately to his injury. When the company had blocked this highway for a. period of more than five minutes, then it became a trespasser and was wrongfully blocking the highway, and this appellant- had a right to pass over the bumpers between the cars to his place of business, and this is what he did do.
And there was some question as to whether or not he climbed over right at the highway. This is immaterial. The highway was blocked, and he had a right to cross over either on the highway, or oil of it. So. Ry. Go. v. Floyd, 55 Rep. 287; Jarrill v. New Orleans & Northeastern R. R. Go., 67 So. 659.
Under the above authority, the appellant had a right, according to some of the evidence in this record, to attempt to cross over, and notwithstanding it may have been negligence to do so, yet this question could have been properly settled and the respective blames balanced up under the modern rule of comparative negligence. This young man suffered a very severe injury, having his foot crushed, suffering great physical and mental pains, and losing much time; and in fact, was permanently injured and we most earnestly insist that the cause ought to be reversed with directions to the court below to allow the cause proceeded with in a proper Avay.
If. we have correctly interpreted the evidence shown by the record, there is no ground for complaint of the court’s action in giving a peremptory instruction for the defendant, and equally certain it is there is none for the court’s action in refusing to re-open the case to permit plaintiff to introduce other evidence as to the length of time that the crossing Avas blocked. The action of the court in refusing this evidence was not erroneous for two reasons; in the first place, it was not rebuttal evidence, and in the second place, such evidence Avould not lurve altered the result, since, by all the uncontradicted evidence in the case, the plaintiff’s injury proximately resulted from his own reckless negligence and was not caused by any negligence of the railroad company. The railroad company had the right, and in fact it Avas its duty to move the train off the crossing, and when the appellant, without justification and Avithout the knoAvledge of the train’s employees, placed himself in a position where he would be hurt by the lawful movement of the train, lie took upon himself the consequence of his own reckless act.
We respectfully submit that the judgment of the court below ought to be affirmed.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
