Teche Lines, Inc. v. Pope, 166 So. 539 (1936).
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Teche Lines, Inc. v. Pope, 166 So. 539 (1936). Book View Copy Cite
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Teche Lines, Inc.
v.
Pope.
Mar 23, 1936.
166 So. 539
Porteous, Johnson Humphreys, of New Orleans, La., and White Morse, of Gulfport, for appellant. If this were a suit between the driver of the bus, or the owner of the bus, and the railway, and the railway should plead section 6124, Code of 1930 (Stop Statute), then it would be a question for the jury as to whether failure to stop was the sole or proximate cause. G. S.I. v. Saucier, 139 Miss. 497 ; N.O. N.E.R. Co. v. Hegwood, 155 Miss. 104 . This statute does not help appellee, as against appellant. The same statute provides the prima facie statute applies. This alone shows the case should have gone to the jury as to the railway, i.e., whether its locomotive blocking the highway under the unusual conditions, was the sole or proximate cause of the accident, resulting in injury to appellee. The court, of course, is familiar with the bell or whistle statute, section 6125, Code of 1930. While appellee was suing the railway, note please that appellee made every effort to prove the bell was ringing. She sought to show the engine was lighted. The attorneys for the railway company took no part in the case except to move for a peremptory. There was a total failure to prove the bus driver violated sections 5569 or 5571, Code of 1930, or any other statute. As to whether it was negligence or not for the railway to block the crossing, we state the books are full of cases on this subject, but we need only look to our own court. G.M. N.R.R. Co. v. Holifield, 152 Miss. 674 ; G.M. N.R. Co. v. Kennard, 164 Miss. 380 ; Spillman v. G. S.I.R.R. Co., 163 So. 445 . All these cases recognize the rule it is not negligence to block the crossing for a reasonably necessary time, in the absence of \peculiar environment\" meaning peculiar conditions of hazard
Griffith.
which reasonable prudence should have reasonably foreseen would likely lead to collision
Griffith, J.,

delivered the opinion of the court.

Appellant is a common carrier of passengers by bus, and, among others, operates a line along the coast upon [*399] what is known as highway No. 90. At a community in Jackson county known as Kreole, this highway crosses the railroad tracks of the Mississippi Export Bailroad Company. About four forty-five o’clock on the morning of July 25,1935, a passenger bus of appellant was traveling eastwardly at the point mentioned, the bus being driven by one Berwick. The vehicle was about thirty feet long, weighed armroximatelv ten tons, and had a seating capacity of thirty-nine uassengers. A torrential rain was falling so that the bus driver could not see further than about sixty feet ahead. Nevertheless, when the driver reached the right of wav of the railroad, and approached the railroad grade crossing, he was proceeding at the rate of twentv-five miles an hour and did not stop or slow down, and made no effort to do so until within less than ten feet of a locomotive of the railroad company, which happened at the moment to be in the occupancy of the crossing. The result was a disastrous collision, and a serious and permanent injury to appellee who was a passenger on the bus.

The above facts are substantially undisputed, so that applying section 6124, Code 1930, the plaintiff, appellee, was entitled to a peremptory instruction. That statute, so far as applicable to this and similar cases, reads as follows: “It shall be unlawful for any person to drive or propel any automobile or automobile truck or other motor driven vehicle upon any railroad track at a public highway or municipal street intersecting such railroad at grade crossing without first stopping at a distance of not less than ten feet nor more than fifty feet from the nearest track and looking for train; provided, however, that this shall not apply to automobiles or other motor driven vehicles of any municipality, when responding to any alarm of fire, nor to the automobiles or other motor driven vehicles of the police department when responding to any emergency call, nor to motor driven ambulances when responding to an emergency call, and it shall not apply where crossings are provided with flag [*400] men and a signal to proceed has been given by the flagman, or where gates are provided and the gates open.” This statute is plain and unambiguous in its terms, carries its own exceptions, and we shall enforce it as written. Had it been obeyed in this case, the injury would not have happened.

Appellee obtained an instruction permitting punitive damages, the instruction reading as follows: “The court charges the jury for plaintiff that if from a preponderance of the evidence you believe that the driver of the bus was guilty of gross negligence, that is, of such negligence as evidenced a reckless disregard for the safety of passengers, then in addition to actual damages for injuries which plaintiff may have sustained as the proximate result thereof, you may, in your discretion, award exemplary or punitive damages.”

It is the firmly established law in this state that punitive damages are recoverable not only for willful and intentional wrong, hut for such gross and reckless negligence as is, in the eyes of the law. the eciuivalent of willful wrong. Godfrey v. Meridian Light & Ry. Co., 101 Miss. 565, 568, 58 So. 534. There is no precise definition of gross negligence, but one of the approximate definitions may be thus expressed: Gross negligence is that course of conduct which, under the particular circumstances, discloses a reckless indifference to consequences without the exertion of any substantial effort to avoid them. The facts of this case, as the statement thereof-reveals, bring it well within that definition and principle. Compare Wilson v. State, 173 Miss. 372, 161 So. 744, wherein we affirmed a manslaughter conviction, as for culpable negligence, upon a state of facts in which the negligence was no more culpable than in the case now before us.

The verdict was for fifteen thousand dollars. This is a larger amount than any one of us would have voted for had we been on the jury. But, as we have -often heretofore said, that is not the test. The state of the record [*401] is such that had there been no allowance of punitory damages and the verdict had been for half the stated amount as compensatory damages, we would not be authorized to interfere. Assuming, therefore, that half, or even more than half, the amount of the verdict represents a punitory award, we are still not authorized to interfere. We call attention to Yazoo & M. V. R. Co. v. Williams, 87 Miss. 344, 355, 39 So. 489, 491, wherein it was said: “It is the long settled and uniformly adhered to rule' in our jurisprudence that the amount of such! punitorv or exemplarv damages is solelv within the discretion of the jurv. and. no matter what the sum of their finding might be. interference therewith, unless for exceptional causes, is discouraged . . . the reason being that, as the jurv are the sole judges of the amount which ouaht nroperlv to* be assessed in order to inflict adecúate punishment, the courts should scrupulously avoid anv undue interference with their prerogative.”

Of couse. it was not meant hv the broad language above quoted that as to punitorv damages the courts are not required to exercise a supervisory rower over such verdicts in the manner as thev are in regard to compensatory verdicts. Beard v. Williams, 172 Miss. 880, 884, 161 So. 750; nor in reaffirming that language do we mean to withdraw in any measure from the constitutional duties of supervision imposed upon us. We must keep all verdicts within the bounds of reason, measured according to legal standards, both in the matter of the evidence upon which the verdict is based and in the amount of the verdict; but to bring the force of this supervisory power into operation, particularly as to punitory verdicts, the amount allowed must be clearly beyond reason, all things properly before the jury calmly considered. We cannot say that upon the facts of this case the amount allowed is beyond all calm reason, and we therefore cannot interfere.

The railroad company was made a joint defendant and the greater part of the argument of appellant is [*402] directed at the alleged error of the trial court in granting a peremptory instruction in behalf of the railroad company. If there were any error- in that respect, the plaintiff, appellee, only would be entitled to complain of it. Even if the railroad company were liable, it would be as a joint tort-feasor, and it is firmly settled in this state that joint tortfeasors are equally liable and that there is no apportionment or contribution between them. Mississippi Cent. R. Co. v. Roberts, 173 Miss. 487, 505, 160 So. 604.

Affirmed.