Illinois Central Railroad v. McLeod

delivered the opinion of the court.

Mr. McLeod hired an open carriage, two horses, and a driver to transport him from Winona to Stafford’s Well and back. The driver was a good, safe driver, and had been in service as such for a number of years. The horses were gentle in single harness, but he had never before driven them double. They were fast roadsters for a livery stable team. It took about forty minutes to drive to the well, and the same time to return to Winona, and they remained at the. well only about fifteen minutes. On returning they went west to the railroad, and at a point seventy-eight feet from the railroad’s eastern iron rail to the center of the public road upon which thejr were traveling, in broad daylight, in an open vehicle, they had to, and did, drive through a lane made by a wire fence between them and the railroad right of way,, which wire fence was on the right of way, fifty feet from the center of the railroad track on their west, and a plantation fence on their east, for a distance of three hundred *341and sixty-five yards, in which drive they were never more than seventy-eight feet from the railroad track, and when they came to the point where their road turned to cross the railroad track they were but sixty-five feet from it. In order to cross the railroad track from this lane, they had to make a turn from the lane of some abruptness around the corner of the wire fence which ran along the railroad right of way, and which corner was fifty feet from the center of the railroad track. Up to the place of the turn, they were driving north, in the face of a stiff breeze coming from that direction. At the same time there was a freight train going north, unknown to them. The engineer saw them as they were driving near the turn, but sounded no alarm for that crossing, for the reason, as he says, that he feared it might frighten their horses. Be this as it may, the occupants of the open vehicle, when they got to the turn, looked back, and saw no train, but, without stopping and listening, drove around the curve of the right of way wire fence and up to near the track, when they found the engine of the northbound freight train right at them, when the engineer blew two sharp whistles. They had stopped suddenly, but too late, and the horses wheeled, threw Mr. McLeod out on the ground, causing injuries of which he soon after died. This puts the case absolutely as strong for the plaintiffs below as it can be put, and the evidence of the whisky drunk by the deceased and the driver on that drive, and of their conversation in the lane about the quality of the land in the field as they passed, is left out of view altogether.

Mr. McLeod gave the driver no directions at all, and in no way interfered with his management of the team. From the facts so put, it is too plain for controversy that, if the driver had been the party killed, no court would have permitted recovery. Recognizing this palpably clear proposition, the effort of appellees is to put Mr. McLeod in a different category, on the theory that the driver’s negligence cannot be imputed to him, since he was merély the hirer of the driver, the vehicle, *342•and the team. But this doctrine cannot be stretched to save a •case like this. It is a mistake to suppose that a passenger in an open buggy need not exercise the commonest prudence, the most ordinary care, when the danger of his surroundings is apparent.- Ordinary and natural prudence requires him to take some action, and to check or remonstrate with the driver. Dean v. Railroad Co., 129 Pa. St., 514, s.c. 18 Atl., 718, 6 L. R. A., 143; Smith v. Railroad Co., 87 Me., 350, s.c. 32 Atl., 967; and the other authorities cited in the brief of counsel for appellant. In Alabama, etc., Ry. Co. v. Davis, 69 Miss., 444, s.c. 13 South., 693, this principle is recognized, and the appellee there saved her case by the proof that she tried to stop the driver. One crossing a railroad, who can see, must see at his peril. Murdock v. Illinois, etc., R. R. Co., 77 Miss., 487, s.c. 29 South., 25; Jobe v. Memphis, etc., R. R. Co., 71 Miss., 734, s.c. 15 South., 129; Winterton v. Illinois, etc., R. R. Co., 73 Miss., 831, s.c. 20 South., 157. In such cases the negligence of the railroad company in not sounding an alarm for the crossing cannot avail to condone the lack of ordinary care by the party injured. On plain principles, the verdict below was unwarranted, and the motion for new trial should have been sustained. Notwithstanding our deep sympathy with the .sufferers from the calamity, the case must be

Reversed and remanded.