Opinion
March 28, 1949.
1. Railroads — speed of passenger train.
When no reason is shown to the contrary by statute or by fact, it is not negligent or unlawful to operate a passenger train at 60 miles an hour when approaching a private crossing in the country at night.
2. Railroads — private crossing — sufficiency of.
When there is no proof that the approach to a private crossing was not a proper approach and it is shown that it was 10 feet wide, ample to enable an automobile to traverse it if properly driven, a charge of negligence in the maintenance of the crossing is not sustained.
3. Railroads — reasonable care to detect automobile on tracks at crossing.
It is the duty of the locomotive engineer to use reasonable diligence to detect an automobile on the railroad track at or near a private crossing in time to stop and avoid striking it.
4. Railroads — engineer blinded by lights of approaching automobile.
When it is undisputed that the lights of an approaching automobile blinded the engineer so that he could not see a stalled automobile on the tracks at night at or near a private crossing until too close to stop the train, but on seeing the stalled automobile he applied his brakes and did all he could to check the speed of the train, no liability can be imposed on the railroad company for the damage to the automobile.
5. Railroads — stalled automobile at or near crossing.
When there is no proof that the lights on an automobile stalled on the tracks at or near a private crossing at night were burning at the time, the issue of negligence is not to be submitted to the jury on the theory that if the engineer had been in the exercise of reasonable care he could have seen the stalled automobile by its own lights, and particularly so when the engineer testified that he saw no such lights.
Headnotes as approved by Roberds, J.
Alexander, J., dissenting.
APPEAL from the circuit court of Lauderdale County; JESSE H. GRAHAM, J.
Cameron Wills, for appellant.
Briefly summarized, our contentions are as follows: The crossing in question was a private crossing, appellant, was under no duty to maintain a lookout for appellee's automobile, and its duty to exercise reasonable care was limited to doing everything possible to stop the train without endangering it or the passengers thereon after the automobile was discovered; and the evidence shows that the presence of the automobile was not discovered until it was too late to avoid the collision, and that everything possible was done to stop the train as soon as the automobile was discovered in a place of peril. We may assume, from the dearth of evidence tending to establish any dangerous condition of the crossing in question, that appellee does not base any claim upon this allegation of his declaration. However, the court should note that the allegation that the way maintained by appellant was not over ten feet wide would carry no probative force on the issue of negligence in this particular, even if established by the proof. The normal tread of an automobile is less than five feet in width, a fact of common knowledge and of which this court will take judicial notice.
Appellee placed the map in evidence, which map shows no circumstance or condition which would render the crossing unsafe in any particular which might have contributed to this accident.
As to the charge of negligence in operating the train at an excessive and dangerous rate of speed, there is no evidence whatever that the accident occurred within the corporate limits of any town or village or of any circumstance which would require the railroad company to reduce its speed on approaching this crossing. Cf. Hines v. Moore, 124 Miss. 500, 87 So. 1. In fact, the evidence negatives any such circumstances, and shows that the accident occurred some four miles outside the City of Meridian at a private crossing serving a dairy farm comprising 77 acres. See Hancock v. Ill. Cent. R.R. Co., 158 Miss. 668, 131 So. 83, and New Orleans Northeastern R. Co. v. Martin, 126 Miss. 765, 89 So. 621. See also 44 American Jurisprudence, Railroads, Sec. 511, P. 751.
As to the alleged failure to maintain a lookout, we submit that the evidence clearly shows that the engineer, Chitwood, was maintaining a lookout at all times after his train came within view of the crossing. The engineer testified that his speed was approximately sixty miles per hour. Mrs. Brown testified that the distance from the curve south of the crossing to the crossing was less than half a mile. While the engineer testified first that the distance was about a mile, he later corrected this testimony by testifying that the distance is near half a mile. Immediately following his testimony with reference to the distance Mr. Chitwood testified as follows: ". . . and there is a block signal just south of that crossing, and I was watching that block; and about the time that I passed that block there was an automobile come over the top of the hill. It is on a curve and up like that, and when the headlights got out of my sight or past me why my headlights showed on the automobile. Looked like it was headed across, kinda headed crossways, and I then discovered it was stopped. When I first seen it I thought it was stopped clear of the crossing, but when I got a little closer to it, why I seen it was kind of headed back this way, and it stood there and spun until it had cut, oh, quite a bit of slag down into, between the tracks, and the wheels was hung up against the rails. Well, I couldn't do anything then. I was too close on it, and I throwed my brakes in emergency."
This testimony shows clearly that Engineer Chitwood was looking in the direction of the crossing, the block signal being just south of the crossing and within the direct line of his vision when looking in that direction. Not only did the engineer maintain the lookout, but he actually saw the automobile as soon as the blinding lights of the automobile on the highway had passed or approached to a point where he was no longer blinded. According to his testimony, his attention was fixed on the automobile from the time it came into the range of his vision until after the train was stopped. The court will bear in mind that Engineer Chitwood was plaintiff's own witness, and we do not understand that appellee challenges his testimony in any particular.
These being all of the allegations of negligence contained in the declaration, the proof completely fails to sustain appellee's asserted right of action.
The verdict of the jury was so contrary to the overwhelming weight of testimony that we are impelled to call attention of the court to instructions which may have produced this result. The court instructed the jury for the plaintiff that it might consider whether or not the engineer operating the train in question saw the headlights of plaintiff's car on the railroad tracks; evidently basing this instruction on the testimony of Mrs. Brown that the lights were shining into her room for a considerable period of time prior to the collision. However, neither Mrs. Brown nor the engineer would testify that the lights were shining at the time the accident occurred. Another instruction allowed the jury to base its finding upon a supposed improper rate of speed, taking into consideration all the circumstances proven, when none of the evidence tended to show that there was any circumstance which would have required a lower rate of speed. This instruction is directly in conflict with one granted to appellant. However, as contended above, this judgment should be reversed; and this court should enter its judgment in favor of appellant.
Gillespie Minniece, for appellee.
Counsel made the statement in their brief that appellee apparently relied on the so-called prima facie statute. However, an examination of the pleadings, proof and instructions will show that that is not correct. The appellee's theory of negligence on the trial in the lower court and the theory of negligence relied on in this court was and is that appellant's engineer, as shown by his own admissions, was looking ahead down a half mile stretch of straight track, and that the jury was entitled to believe that he saw appellee's automobile on the track and failed to then take reasonable precautions to prevent a collision with it.
There seem to be no cases decided in this state on the question of the duty owed by a railroad company to an owner whose automobile becomes stalled on the tracks of the railroad company at a private crossing. By analogy, however, the railroad company would at least owe the same duty as they owe to an individual who is a trespasser or to the owner of an animal who wanders onto the tracks. There are numerous cases from this court covering the question of the duty owed by a railroad company to trespassing individuals and to the owners of animals which wandered upon the tracks. However, we will cite only two cases as representative of the law in this state in that respect.
In the case of Fore v. Illinois Central Railroad Company, 172 Miss. 451, 157 So. 557, appellant's mule strayed during the night upon the railroad tracks of the appellee. Appellant's proof showed that the mule went upon the track and then down the track in a southerly direction for approximately two hundred (200) feet and then turned and came up the center of the track to the point at which it was killed. Appellant's proof showed that the whistle was sounded about a quarter of a mile from the point at which the mule was struck, and that the speed was not slacked or slowed down during that period. The mule was struck and dragged along for some distance. Appellee's engineer and fireman testified that the mule was seen a short distance before it was struck, and that everything was done that could be done by them after seeing the mule to prevent the injury, and that it was impossible to stop the train within that distance. The court held that the lower court was in error in giving the railroad company a peremptory instruction; that if the alarm was sounded for a distance of a quarter of a mile from where the mule was struck, and the speed was not slowed down, the jury could infer therefrom that the engineer and fireman saw the mule and gave the alarm and did not apply the brakes and do all they could to avoid the injury. They held that the railroad company was not under duty to keep a constant lookout for trespassing animals, but that it did owe the duty, if the mule were seen, to exercise reasonable care and diligence to prevent striking it, and that the jury could infer from the proof that the engineer and the fireman did not do everything that was reasonable to prevent the injury, despite their testimony to the contrary; that the physical evidence coupled with the testimony of the witnesses as to the sounding of the alarm and the failure to slow the train was sufficient to dispute the testimony of the engineer and fireman.
In the case of Yazoo and Mississippi Valley Railroad Company v. Lee, 148 Miss. 809, 114 So. 866, one Dr. Lee who had defective hearing was killed on appellee's tracks while walking along the track with his back to an approaching train as an invitee or a trespasser. It appeared from the evidence that the engineer saw Dr. Lee walking along the track at a distance of about a thousand feet and blew his whistle at him; that Dr. Lee did not respond to these signals but continued to walk with his back toward the approaching train; that a number of persons seeing Dr. Lee's position on the track and the approaching train ran toward him waving their arms to attract his attention and warn him of his danger. Dr. Lee made no response to the signals from the engineer. The engine stated that he saw Dr. Lee at a distance of about one thousand fifty (1,050) feet, but thought that he would get off the track and was about two hundred fifty (250) feet from him before he shut off the steam and applied the air brakes in an attempt to stop. The railroad company argued that there was no showing of any negligence on their part, and that they were entitled to a peremptory instruction because their engineer had the right to assume that the person walking on the tracks was possessed of normal faculties and would get off of the track. They argued that the engineer was under no duty to slacken the speed of the train until he saw or understood that Dr. Lee had not apprehended the signals. The court held that the evidence warranted the court in submitting the question of the negligence of the engineer to the jury. They held that questions like the one there involved are questions of practical experience and are evidence for the jury to reach the conclusion that the engineer was negligent in not slackening the speed of his train earlier than he did, so as to prevent injury to Dr. Lee.
In the case at bar it was shown that the railroad track was perfectly straight for approximately a half mile in the direction from which the train involved in this accident approached appellee's automobile stalled on the track at the crossing, and that there was a crossing whistle post approximately a quarter of a mile along this straight stretch of track before the train would have reached the crossing. It was further proved by a map of the County Surveyor, which is an exhibit in this record, that the private crossing at which it was shown appellee's automobile was stalled ran almost perpendicular across the tracks at that point. It was further shown by Mrs. Brown that the headlights from the appellee's automobile were shining into her room. An examination of the map referred to above will show that in view of this fact, the lights of the automobile were shining almost directly across apepllant's tracks. The jury was entitled to infer that those lights were still burning when appellant's train rounded the curve and came onto this half mile straight stretch of track. It was shown that the left rear wheel of appellee's automobile was between the cross ties of the tracks against the rail. This would place approximately ten (10) feet of the automobile across the track, with its headlights burning. Appellant's engineer testified that he was looking down this straight stretch of track toward the crossing, and that he saw some headlights up there. It is true, as contended by counsel for appellant, that the engineer stated that as soon as he realized the automobile was on the crossing, he did everything possible to stop the train, but according to his testimony he did not even attempt to slow the train down until he was within about seventy (70) feet of the automobile. He further testified that when he first realized the automobile was on the crossing, he was going around sixty (60) miles per hour. This would indicate that although he was looking straight down this track for half a mile before he reached appellee's automobile, he did not take any steps to slow down his train until he approached within seventy (70) feet of the automobile. It was further shown that the appellee's automobile was dragged about one-third (1/3) to one-half (1/2) mile after the collision.
Under that state of the record, the plaintiff obtained two instructions with reference to the alleged negligence of the appellant's engineer, being plaintiff's Instructions No. 1 and 2. Both of these instructions were predicated, not on the prima facie statute as stated by counsel for appellant, but on the proposition that appellant was liable if their train approached appellee's automobile at an unreasonable and improper rate of speed under all the circumstances proven by a preponderance of the evidence after having seen the automobile of the appellee. Under the cases as cited hereinbefore, we submit that those two instructions properly gave the jury the law on which this appellee was entitled to reply.
It was argued to the jury on the trial of this cause, and we submit the same argument here, that the physical facts show that if appellant's engineer was looking down this half mile straight stretch of track, as he testified he was, it was just like sighting down a gun barrel, and that with this appellee's automobile stalled across this track with its headlights burning, appellant's engineed should have taken some action to bring appellant's train under control much further down the track than he did, and that his failure to do so constituted negligence which proximately caused appellant's damage. This being a suit for the value of an automobile, there was no opportunity to inject any sympathy into this case before the jury, but as stated it was submitted to them on that one common sense proposition. We submit that it was properly given to the jury, and that as stated in the case of Yazoo and Mississippi Valley Railroad Company v. Lee, supra, question like the ones here involved are questions of practical experience and are for the solution of the jury. We submit that under the authority of this case and the case of Fore v. Illinois Central Railroad Company, supra, appellant was not entitled to a peremptory instruction, and the case was properly submitted to the jury.
Counsel for appellant complains of an instruction that the jury might consider whether or not the engineer operating the train in question saw the headlights of plaintiff's car on the railroad track. The basis of their complaint is that neither Mrs. Brown nor the engineer would state positively whether or not these headlights were burning at the very time of the collision. There was positive testimony by Mrs. Brown, however, that these lights were shining in her window over a period of more than an hour and that the last time she woke up prior to the accident they were still shining in her window and we believe that the jury was entitled to use their practical experience and judgment in determining whether or not the lights were still shining at the time of the collision.
They also complained of an instruction that the jury could base its finding upon a supposed improper rate of speed complaining that it was improper and in conflict with one granted the appellant. An examination of these instructions, however, will show that the instruction given this appellee referred to the speed of the defendant's train after having seen the automobile of this appellee and that this instruction is entirely proper even if the duty of the appellant's engineer to appellee's automobile is considered the same as that to a trespasser. The instruction given appellant which they say was in conflict refers to the speed of the train at the time appellee's automobile was first discovered. The two instructions are in no wise in conflict.
Martin, as plaintiff, seeks in this action to recover of appellant, defendant below, the value of an automobile, the property of Martin, alleged by plaintiff to have been negligently struck and demolished by a passenger train of the Railroad Company. The jury found for plaintiff in the sum of One Thousand Dollars, and the Railroad Company appeals.
It contends on this appeal (1) that no negligence is shown on its part; (2) that appellee is estopped to maintain this action; and (3) that the right is barred by the six-year statute of limitation.
We have concluded the first contention is well-taken, and, therefore, we decide no other.
The grounds for negligence, as charged in the declaration, were (a) the train was running at too fast a speed; (b) that the Railroad Company negligently failed to maintain a proper crossing; and (c) the engineer failed to keep a proper lookout and stop his train before hitting the automobile.
(Hn 1) As to the first ground, the train was running about sixty miles per hour. The crossing where the accident happened was a private crossing, some four miles northeast of the City of Meridian. The evidence discloses no reason, based upon statute, ordinance or fact, indicating that a speed of sixty miles per hour by a passenger train, at the place and under the circumstances here shown, was unlawful or constituted negligence.
(Hn 2) As to the manner of maintaining the crossing, the declaration alleges that the approach to the crossing from the public highway was too sharp, making it difficult for a motorist to enter upon the crossing, and also that the width of the crossing way was too narrow. There is no proof the approach was not a proper approach. The roadway over the crossing was ten feet wide, amply sufficient to enable an automobile to traverse the same, if properly driven. We do not decide whether the Railroad was, or was not, under duty to maintain this crossing. That is not necessary. No negligence is shown in such maintenance, assuming the duty did exist.
On the question whether negligence is shown in the failure of the engineer to detect the automobile on the track and stop his train, these are the undisputed facts, all brought out in the evidence on behalf of the plaintiff:
This is a two-track railroad. North-bound trains operate on the south track, and southbound trains run upon the north track. At the point of the accident, the tracks lie almost east and west, although the general direction of the railroad is northeast and southwest. United States Highway 80 runs parallel with, and is adjacent to, the south side of the south railroad track. The distance from the north line of the highway pavement to the south rail of the south railroad track is 72 feet. The dwelling of W.E. Brown and family is located 245 feet north of the north rail of the north track. Brown owned 77 1/7 acres of land, on which he operated a dairy, lying north of, and adjacent to, the north right of way of the railroad. It appears the railroad crossing is maintained principally, and perhaps exclusively, for the use and benefit of Brown. For a distance of near a half mile west from the crossing the track is practically straight. About, or just east of the crossing, going east, the railroad curves slightly to the right, or south, and the public highway, following the contour of the railroad, curves to the north or right, as one travels west thereon.
The automobile, although owned by Martin, was, at the time of the accident, being driven by W.F. Amason, by permission, but not as the agent, of Martin. Apparently Amason, in attempting to enter the crossing from the highway, had gotten too far west and partly missed the crossing way. The car was headed north towards the Brown residence. It was upon the south track. The left rear wheel thereof was between the crossties, and up against the south side of the south rail. It had cut deep into the cinders between the crossties as a result of being rapidly spun for some time. A block railroad signal is located approximately a quarter of a mile west of this crossing.
Mrs. W.E. Brown testified that she was awakened in her home about 1:30 o'clock in the morning by the racing of the engine of this stalled automobile; that she got up and saw the car on, or near, the track; that the headlights were then burning and were shining in her bedroom. However, before the accident occurred some two hours later, she had gone back to sleep and did not know whether the car lights were burning when the accident occurred.
The passenger train which hit and demolished the automobile left Meridian at 3:15 A.M. The accident occurred about 3.23. The bell had constantly rung since leaving Meridian. Proper whistle signal was duly given for this crossing. The engineer testified that as he approached this crossing, he first noticed the block signal, as was his duty; that as he began to look beyond this signal an automobile, going west on the public highway, came over an incline, or as was described, a "knoll" near, or opposite, the railroad crossing, and the bright lights from this automobile blinded him until the train and car met and passed, the curve in the railroad and public road inevitably causing the automobile lights to shine directly into his eyes; that immediately the automobile lights ceased to blind him he saw something upon the track at this crossing; that instantly on detecting this object, he applied his brakes and did everything possible to stop, or check the speed, of the train, consistent with safety for his passengers, but he was too close to the crossing for the train to be stopped. He did everything that could be done under the circumstances to detect anything upon the track, and to avoid the accident.
If liability exists here, it is because the engineer did not use reasonable diligence to detect the automobile upon the tracks in time to stop and avoid the accident. It was his duty to use such care. Hines v. Moore, 124 Miss. 500, 87 So. 1. It is not contended any duty rested upon the fireman, under the circumstances here, to keep a lookout at this crossing. Yazoo M.V. Ry. Co. v. Lum, 191 Miss. 170, 2 So.2d 561. (Hn 4) Whether the lights of the approaching automobile, blinding the engineer, be deemed an independent cause, or whether simply an element in determining whether the engineer used reasonable care, the result is the same as to liability of the defendant. Under the first theory, the Railroad was in nowise responsible for the existence of the lights; and under the second theory, the lights created an effective, unavoidable, independent condition resulting in the inability of the engineer to see the car on the track. In any event, it is shown, without dispute, the engineer did all he could. It should be kept in mind also that this was the proof of the plaintiff. It was his case. Nor is there any claim, or intimation, that these are not the true facts. The engineer was not a party to the suit. He was not called as an adverse witness. He was used to make out the plaintiff's case.
But, it is argued by appellee that whether the engineer saw, or, by the use of reasonable care, could have seen the headlights of the stalled car as they shone towards the Brown residence, was a question which should have been submitted to the jury. There are three answers to that contention. The first is, the approaching automobile lights, blinding the engineer, had the same effect on his ability to see the stalled car lights as to see the stalled car itself. The second is, that had the lights been burning on the stalled car, and had the engineer seen them, their existence would not necessarily have demonstrated to the engineer the car was standing on the track. The conclusion the car was moving across the tracks north would have been as logical, perhaps, as that the car was standing still. (Hn 5) And the third, and all-sufficient answer, is that there is no proof the lights were burning on the stalled car when it was struck by the train. Mrs. Brown said they were burning when she went back to sleep, but she did not know how long that was before the accident, and, naturally, did not know whether the lights were burning when the accident occurred. On the other hand, the engineer said he did not see any lights on that car, and his judgment was no lights were burning.
Reversed and judgment here for appellant.
I am of the opinion that this case involves the doctrine of the last clear chance, and that it was for the jury to say whether the engineer failed to see what he ought to have seen, and by the use of reasonable care could have seen.