Opinion
No. 35011.
May 25, 1942. Suggestion of Error Overruled September 28, 1942.
RAILROADS.
Where motorist saw locomotive within 100 feet of crossing approaching crossing at speed of four or five miles an hour and practically stopped, but then proceeded upon crossing, and automobile was struck by locomotive, failure to give statutory crossing signals did not render railroad liable for damage to automobile, since under circumstances warning was not necessary (Code 1930, sec. 6125).
APPEAL from the circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
Flowers, Brown Hester, H.M. Kendall, and Robert Burns, all of Jackson, for appellant.
A verdict must be supported by substantial evidence.
Tyson v. Utterback, 154 Miss. 381, 122 So. 496, 63 A.L.R. 1188; Y. M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; Burnside v. Gulf Refining Co., 166 Miss. 460, 148 So. 219; New Orleans N.E.R. Co. v. Holsomback, 168 Miss. 493, 151 So. 720; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80, overruling suggestion of error, 180 Miss. 426, 177 So. 50; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Mutual Ben. Health Accident Ass'n v. Johnson (Miss.), 186 So. 297; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Southern Ry. Co. v. Buse, 187 Miss. 752, 193 So. 918.
The purpose of the statute requiring the blowing of the whistle or the ringing of the bell as a train approaches an intersection of the railroad with a public highway is to give notice and warning to the drivers of motor vehicles and all others who might use the crossing of the presence and approach of the train; and if the driver of an automobile on the highway approaching the crossing sees the train upon the railroad track and notes its nearness to the same, then he cannot recover for property damage resulting from a collision of the automobile with the train at the crossing, even though the bell was not rung nor the whistle blown, when there is no causal connection between the failure to give the signals and the happening of the collision complained of.
G.M. N.R. Co. v. Addkinson, 189 Miss. 301, 194 So. 593; N.O. N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Thompson v. Mississippi Central R. Co., 175 Miss. 547, 166 So. 353.
We submit that the authorities cited by appellee give very little, if any, comfort to him in the present case. They either have no application at all, or they are predicated on the situation where a train is standing and suddenly starts over a crossing without giving proper warning.
Watkins Eager, of Jackson, for appellee.
The Supreme Court may not interfere with this verdict on the facts unless it can say with entire confidence that the verdict herein is without substantial support of believable evidence.
Tri-State Transit Co. v. Moore, 188 Miss. 722, 196 So. 231; Faulkner v. Middleton, 186 Miss. 355, 188 So. 565.
Failure to comply with Section 6125, Mississippi Code of 1930, as to crossing signals could be found by the jury to be a proximate cause of the accident in spite of the fact that the driver of the car saw the engine. The purpose of such signals is not only to give notice of the presence of the train but of its movement.
Appellant apparently takes the position that because Vernel Baggett knew of the location of the track and saw the train that no statutory signals would be necessary. This, of course, is not the law.
This court has often held that the purposes of the signals required by Section 6125 are broader than the mere notification of a traveler on the highway of the presence of a train. This is the rule in other states. A traveler on the highway has a right to rely upon the statutory signals to determine movement and distance of a train, as well as its presence. The only time that the failure to afford such signals affords no cause of action is where the person involved is not only already aware of the train's presence, but is also aware of its "movement" and has all the warning which could possibly be afforded by the signals.
Ft. Smith, etc., R. Co. v. Messeck (Ark.), 131 S.W. 686; U.S. Director Gen. of Railroads v. Zanzinger (C.C.A. 4), 269 F. 552; 52 C.J., "Railroads," 233, par. 1821.
The violation of Section 6125, Mississippi Code of 1930, requiring trains to sound the bell or whistle on approaching a highway intersection is negligence per se on the part of the railroad.
Mississippi Central R. Co. v. Smith, 173 Miss. 507, 154 So. 533.
See, also, A. V.R. Co. v. McGee, 117 Miss. 370, 78 So. 296; Gulf S.I.R. Co. v. Simmons, 150 Miss. 506, 117 So. 345; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144.
The proximate cause, if not a legal certainty, was a jury question and was properly presented to the jury here by instructions and the jury here found that the failure to give the signals was the proximate cause of the collision.
Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Magers v. Okolona, H. C.C.R. Co., 174 Miss. 860, 165 So. 416.
A judgment was recovered by appellee against appellant railroad company for the damages done to appellee's automobile as a result of a collision with one of appellant's locomotives at a public highway crossing. The injury occurred about three o'clock on an afternoon in March. The automobile was being driven by appellee's eighteen year old daughter, who will be hereinafter referred to as the driver; and the negligence charged against appellant was the alleged failure to give the crossing signals prescribed by Section 6125, Code 1930.
The highway at the point in question crosses the railroad at right angles, or approximately so. The locomotive was proceeding northward at about four or five miles an hour, and the driver was approaching the crossing going west traveling at a moderate rate of speed. When the driver was about fifty feet, or perhaps a little more, from the crossing, she saw the locomotive, as she admits, and saw that it was headed toward the crossing. She thereupon slowed down, and came practically to a stop. She says that she heard no bell or whistle and saw no smoke coming from the locomotive and concluded therefrom that the locomotive was standing still, whereupon she forthwith proceeded at about ten miles an hour upon the crossing, where the automobile was struck and damaged by the locomotive. Comparing the movement of the locomotive with that of the automobile, it is fairly apparent that the locomotive, when the driver saw it, was within about one hundred feet of the crossing. It is not controverted that the engineer did all he could to avert the injury when and after he saw that the driver was about to enter upon the crossing.
In accordance with the previous decisions and with the rule in other states, this court held in Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 166 So. 353, that where the driver of an automobile at a crossing actually saw nearby in unobscured daylight an approaching train and was thus informed both of its presence and of its proximity in time to avoid going upon the crossing, the failure to give the statutory crossing signals, if there were such a failure, became thereby a matter wholly immaterial in the determination of the case.
Appellee does not challenge the stated rule so far as concerns the presence of the locomotive, but says that the driver was entitled to the warning signals, so that thereby she could have been rendered more alert as to the movement of the train, and 52 C.J., p. 233, with the cases under note 6, are cited in support of that contention, — particularly United States Director General v. Zanzinger, 4 Cir., 269 F. 552, 554. That case and the others, so far as any of them are pertinent here, were concerned with situations where the train was standing still when and while seen, and thereafter went into movement without signal. Such is not the present case nor is it brought within the decisions relied on, even though there is the assertion of the driver that she thought the locomotive was standing still when the undisputed facts, as facts, are that it was moving and had not been still at any time during which the driver saw it.
Inasmuch as the actual sight of a locomotive, in unobstructed view in full daylight and within one hundred feet in distance, as was the case here, gives all the warning necessary of its presence and proximity, it must equally follow that when the locomotive so seen, within such a distance in unobscured daylight, was actually moving at the rate of as much as four or five miles per hour, and was approaching the crossing at a right angle to the direction of the driver, this was all the warning that was necessary as to its movement.
It is interesting to note that in the principal case cited and discussed by appellee on this point, United States Director General v. Zanzinger, supra, the court also said that, "a moving train, if seen, is itself a warning," — and we must agree with that statement, when applied to the real facts of the case here before us.
The peremptory charge requested by appellant should have been given.
Reversed, and judgment here for appellant.