Opinion
No. 39205.
May 17, 1954.
1. Railroads — grade crossing collision — negligence — jury question.
In suit against Railroad Company and engineer for injuries sustained by cab driver in collision with switch engine at grade crossing, conflicting evidence as to whether statutory warning signals of approach of engine were given, maintenance of proper lookout, speed of train, speed of taxicab, and obstructions to view of cab driver and members of train crew at crossing, presented issues of fact that were properly submitted to jury.
2. Evidence — photographs — rule as to their admission.
Before a photograph may be admitted into evidence, it must be shown by extrinsic evidence to be a true and faithful representation of the place or subject it purports to represent as it existed at a time pertinent to the inquiry.
3. Evidence — photographs — accurate reproduction of conditions — at time pertinent to inquiry.
In such case, where photographs of railroad grade crossing were offered in evidence by defendant, the material inquiry was whether such photographs were a fair and accurate reproduction and representation of conditions as they existed at the time of the collision.
4. Evidence — photographs — time taken — rule as to admissibility.
The time at which a photograph offered in evidence was taken is important only with reference to the question of probability of change in condition of the object or object portrayed and mere fact that a photograph was taken at a time different from that in question does not render it inadmissible if the witness is able to verify it as a substantial representation of the conditions as they existed at the time in question.
5. Evidence — photographs — change in conditions — rule as to admissibility.
Fact that conditions existing at time pertinent to inquiry were somewhat changed before photograph was taken does not render photograph inadmissible if the changes were not material, and if the changes are carefully pointed out and brought to the attention of jury.
6. Evidence — photographs — admission properly refused.
In such case, where grade crossing collision occurred at 2:30 a.m. and photographs of crossing offered in evidence were taken approximately seven and one-half hours after collision, refusal to admit such photographs was not error where there was no showing that conditions existing at time photographs were taken were the same as the conditions that existed at time of collision, though witness testified that photographs were accurate representations of what he saw at crossing at time photographs were taken.
7. Appeal — review — refusal to admit photographs — where not sent up with record.
Supreme Court could not determine whether refusal to admit photographs in evidence constituted reversible error, where such photographs were not sent up as part of record on appeal.
8. Trial — instructions — required to furnish flagman at crossing — refusal not error.
Refusal to give requested instruction that defendant railroad was under no duty to furnish flagman at crossing at which taxicab driven by plaintiff collided with defendant's switch engine, was not error where declaration did not charge, and plaintiff did not attempt to show, that railroad was required to furnish flagman at such crossing.
9. Railroads — instruction — ringing of bell prior to reaching crossing — properly refused.
Requested instruction to the effect that plaintiff could not recover in any event if bell of engine was kept ringing continuously for a distance of three hundred yards before it reached crossing was properly refused.
Headnotes as approved by Kyle, J.
APPEAL from the circuit court of Jones County; F. BURKITT COLLINS, Judge.
Welch, Gibbes Butts, Laurel, for appellant.
I. The evidence fails to show that the train was operated at such a rate of speed as to constitute negligence. Hancock v. Illinois Cent. R.R. Co., 158 Miss. 688, 131 So. 83; Mobile Ohio R.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Southeastern Greyhound Lines v. Callaghan (Ala.), 13 So.2d 660.
II. The evidence fails to show want of proper lookout. Mississippi Cent. R.R. Co. v. Smith, 173 Miss. 507, 154 So. 533; Mobile Ohio R.R. Co. v. Bryant, supra; Mobile Ohio R.R. Co. v. Johnson, 157 Miss. 266, 126 So. 827; 44 Am. Jur., Railroads, Sec. 510 p. 750.
III. The evidence fails to show that the train was operated without giving proper warnings. Mobile Ohio R.R. Co. v. Johnson, supra; New Orleans N.E.R.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825.
IV. The evidence fails to show that the defendant Railroad Company failed to maintain a reasonable safe public crossing or to use reasonable care to keep and maintain a reasonably clear or unobstructed view of its railroad track south of the intersection.
V. The Court erred in refusing to admit the photographs tendered as an exhibit to the testimony of M.S. Horn. Cinderella Foods Division v. Miller (Miss.), 52 So.2d 641; Patton v. Nelson (Miss.), 51 So.2d 752.
VI. The lower court erred in refusing appellant its requested Instruction No. Two. Bonhomie H.S.R.R. Co. v. Ferguson, 160 Miss. 433, 134 So. 146.
VII. The lower court erred in refusing the appellant its requested Instruction No. Six. Alexander's Miss. Jury Instructions, Sec. 3913.
VIII. The negligence of the driver and plaintiff was the sole proximate cause of the injuries sustained. L.N.O. P.R. Co. v. French, 69 Miss. 121, 12 So. 338; New Orleans N.E.R.R. Co. v. Burge, supra.
IX. The verdict in this case is contrary to the overwhelming weight of the evidence. Deavours Hilbun, William H. Odom, Grover C. Doggette, Laurel, for appellee.
I. In view of this hazardous crossing the jury found that appellant's rate of speed was not commensurate with the surrounding circumstances. Under our system the jury determines all questions of negligence. Sec. 1455, Code 1942.
II. The jury by its verdict found that the bell did not ring nor did the whistle blow.
III. Appellant states that the jury by its verdict exonerated the engineer of negligence and argues that if a carrier and its servant be jointly sued, and on several counts, and verdict be returned against the carrier but for the servant, then the judgment must be sustained if at all upon those counts which do not involve the negligence of the servant. This Court has had this identical question presented to it in at least three different cases and has decided the question against the appellant's contention in each case. Illinois Cent. R.R. Co. v. Clark, 85 Miss. 691, 38 So. 97; St. Louis S.F.R.R. Co. v. Sanderson, 99 Miss. 148, 54 So. 885; Thomas v. Rounds, 161 Miss. 713, 137 So. 894.
IV. Appellant has in nowise been prejudiced by this verdict because even if there had been a verdict against it and its employee appellant could not have enforced contribution from the employee. Chap. 259, Laws 1952.
V. Appellant argues that because its employee was relieved of liability it should also be relieved of liability. It would be just as logical for appellee to argue that because appellant was liable that its employee was also liable. Why should a verdict for the employee relieve the master any more than a verdict against the master should bind the employee?
VI. Appellant argues that the lower court erred in sustaining an objection to the introduction of a picture offered by appellant. In the first place, there is nothing in the record showing what the picture would have shown if it had been admitted in evidence. In the second place, the picture was made several hours after the collision. No one testified or indicated that the condition of the crossing when the picture was made was the same as it was when the collision occurred. The material inquiry is whether or not the photograph was a fair and accurate reproduction and representation of conditions as they existed at the time of the collision.
VII. In the next place, liability is predicated upon several grounds of negligence. Excessive speed, failure to give warning, and failure to have a proper lookout, as well as a blind crossing, are charged. Certainly the picture would throw no light on whether the whistle blew or the bell rang or the speed of the locomotive or whether the appellant provided a proper lookout. Even if the picture bore out appellant's contention about condition of the crossing, it is still faced with an adverse verdict based on several other grounds of negligence. Appellant simply cannot show from this record that the verdict was based solely on the ground of a blind crossing and, therefore, it does not affirmatively appear from the whole record that the judgment resulted in a miscarriage of justice. Rule 11, Rules of Supreme Court.
VIII. Appellant's requested Instruction No. Two was properly refused because it involved a point about which no contention was made. The declaration did not charge that appellant owed the duty of providing a flagman at the crossing.
IX. Appellant complains because its requested Instruction No. Six was refused. This instruction simply tells the jury that if the bell of the locomotive was continually ringing for a distance of three hundred yards before it reached the crossing, that the plaintiff could not recover regardless of everything else. In other words, as long as the bell was ringing the locomotive had a license to hit anything on the crossing regardless of every other fact. This instruction relieves the Railroad of its duty to (1) provide a clear and unobstructed view of the crossing, (2) operate said locomotive at a reasonable rate of speed, (3) maintain a reasonable and proper lookout, and (4) maintain a reasonable safe street crossing at the intersection. It means that if the Railroad performed one of its duties, that it was then and there relieved of all other duties.
X. This Court has held that the instructions must be considered as a series and if, when so considered, they fully and fairly instruct the jury as to every material fact in controversy, they will be considered sufficient. Metropolitan Life Ins. Co. v. Moss (Miss.), 192 So. 343; Yazoo M.V.R.R. Co. v. Williams, 87 Miss. 344, 39 So. 489.
XI. Appellee made a case which was believed by the trier of the facts and upheld by an able Circuit Judge, and one that should not be disturbed by this Court.
Cleveland Golden, plaintiff, recovered a judgment against the Gulf, Mobile and Ohio Railroad Company, defendant, in the Circuit Court of the Second Judicial District of Jones County, for the sum of $2,500 as damages for personal injuries alleged to have been sustained by him when the taxicab that he was driving collided with a diesel switch engine at a railroad crossing. From that judgment the defendant prosecutes this appeal.
The accident occurred about 2:30 a.m. on September 14, 1951, at the railroad crossing on Hickory Street, in the City of Laurel.
The declaration charged negligence on the part of the railroad company in failing to give the statutory warning signals, in failing to provide a clear and unobstructed view of the crossing where the accident occurred, in operating the locomotive at an excessive rate of speed, in failing to maintain a proper lookout, and in failing to maintain a reasonably safe street crossing at the intersection. The defendant's answer denied such negligence, and alleged that the accident was caused by the negligence of the plaintiff in operating his automobile at a high and reckless rate of speed and in disregard of the warnings given.
The record shows that the appellant's railroad track runs north and south at the point where the accident occurred. Hickory Street runs east and west and crosses over the track at right angles. Hickory Street was a graveled street at the time of the accident. The main line track and two side tracks crossed the street at the intersection. There was an old ice house on the south side of Hickory Street and immediately west of the railroad crossing, and west of the ice house there was an alley and then a cafe. West of the cafe there was a thickly populated colored residential section. About 40 steps south of the Hickory Street crossing there was a railroad tool house, 10 or 12 feet high, on the west side of the railroad right of way. The plaintiff testified that at the time of the accident there was a long row of cross-ties stacked between the tool house and the crossing, and that there were high weeds along the railroad right of way between the railroad track and the ice house.
The plaintiff, who was a cab driver, testified that he approached the intersection from the west, and that he stopped at a point about the ice house and looked in both directions to see whether a train was approaching. He saw no train approaching, and as he proceeded in low gear over the crossing the locomotive struck his taxicab about the center of the cab door. The plaintiff testified that he heard no bell ringing or whistle blowing, although his hearing was good at that time and his cab window was down. No warning signal was given by any member of the engine crew. The plaintiff testified that he received a cut on the back of his head, and a cut on his hand, and an injury to his knee; and that he lost a piece of his left ear. He also claimed that his nervous system had been seriously impaired, and that he had lost his "manhood," as a result of the injuries sustained by him in the collision.
The plaintiff's testimony concerning the failure of the train crew to give the statutory signals was corroborated by Robert L. Chambers. Chambers testified that he crossed the railroad track from the opposite direction just before the collision occurred; that he stopped, looked and listened when he approached the crossing, and that he did not hear a bell ring, or a whistle blow. He stated that if there had been a bell ringing or a whistle blowing, he would have heard it. He passed the plaintiff's cab four or five yards west of the railroad track. The plaintiff was traveling at a rate of speed not over four or five miles per hour. The plaintiff's testimony concerning his bodily injuries was corroborated by the testimony of Dr. T.J. Barnes, who treated the plaintiff for his injuries.
The engineer and fireman, and two other members of the train crew testified for the defendant. All testified that the statutory signals were given, that the whistle was blown for the crossing, and that the bell was ringing as the engine approached the crossing. The engineer testified that the engine was a diesel motor engine weighing 1600 tons, and was approximately 56 feet long. It was equipped with a brake system that could be operated by two brake valves, an independent brake valve and an automatic brake valve; and it was equipped with proper head lights. There were no box cars attached to the engine at the time of the accident. There were five members of the train crew in charge of the engine, namely, an engineer, a fireman, two helpers and a foreman. The only crew member who saw the taxicab approaching the crossing was the fireman, who was seated on the left side of the cab of the engine. The fireman testified that when he saw the taxicab approaching the track it was two or three car lengths from the crossing. The diesel engine at that time was about the same distance from the crossing. The fireman called to the engineer, "Ho, here comes one," and the engineer immediately applied the brakes; but before the engine was brought to a complete stop the collision occurred. The fireman and the other members of the crew testified that the taxicab struck the footboard on the left front side of the engine, and was pushed or dragged northwardly about 50 feet from the point of the impact. Other members of the train crew testified that the engine approached the crossing at a rate of speed from 4 to 8 miles per hour.
George Jones, another employee of the railroad company, who was not a member of the train crew, testified that he was walking along the east side of the track near the crossing at the time of the collision, that he saw the locomotive lights and heard the whistle blowing and the bell ringing, as the engine approached the crossing. He also testified that he saw the cab approaching the crossing at a rate of speed of 35 or 40 miles per hour, and he did not see the cab stop until it collided with the locomotive. On cross-examination, the witness admitted that the crossing looking south down the main line was in a way a blind crossing.
The engineer, Earl Griffin, was named as a co-defendant in the declaration. But the jury returned a verdict against the railroad company only.
The first point argued by the appellant's attorneys as ground for reversal on this appeal is that the evidence was insufficient to show that the members of the train crew were negligent in any manner in the operation of the locomotive engine as the engine approached the crossing; that the evidence failed to show that the engine was running at such rate of speed as to constitute negligence, or that the engineer and fireman failed to maintain a proper lookout, or to give proper warning as the engine approached the crossing. But there was a direct conflict in the testimony of the plaintiff and his witness, Chambers, and the testimony of the members of the train crew, as to whether the statutory signals were given, and also as to the rate of speed of the taxicab as it approached the crossing. There was also a conflict in the testimony relating to the obstructions along the west side of the railroad track looking southwardly from the Hickory Street crossing, which might have prevented a traveler from seeing an approaching train, until he was dangerously close to the track, and which might have prevented the members of the train crew from seeing an automobile approaching the crossing, until the engine was dangerously close to the crossing. The plaintiff's contention was that these obstructions were such as to require the exercise of unusual precautions by the members of the train crew to meet the dangerous conditions resulting from such obstructions. (Hn 1) All of these conflicts in the testimony presented issues of fact that were properly submitted to the jury. Illinois Central R. Co. v. Williams, 144 Miss. 804, 110 So. 510; Columbus Greenville R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Yazoo Mississippi Railroad Co. v. Pittman, 169 Miss. 667, 153 So. 382; N.O. N.E.R. Co. v. Lewis, 214 Miss. 163, 58 So.2d 486; Gulf, M. O.R. Co. et al. v. Scott, 216 Miss. 532, 62 So.2d 878; Donald, Admr., v. Gulf, M. O.R.R. Co., 220 Miss. 714, 71 So.2d 776.
The appellant next contends that the court erred in refusing to admit photographs of the railroad crossing offered in evidence as exhibits to the testimony of M.S. Horn, the train master at Laurel who visited the scene of the accident about 10 o'clock a.m., approximately 7 1/2 hours after the accident occurred. The pictures were taken at that time, and Horn was present when the pictures were taken. Horn testified that the pictures offered in evidence were accurate representations of what he saw there at that time. The plaintiff objected to the introduction of the photographs on the ground that the pictures were taken after the accident occurred, "the accident occurred in the nighttime, and the picture being taken in the daytime." The court sustained the objection. The appellant argues that the photographs should have been admitted in evidence.
(Hn 2) The rule is that, "Before a photograph may be admitted in evidence, it must be shown by extrinsic evidence to be a true and faithful representation of the place or subject it purports to represent as it existed at a time pertinent to the inquiry." 32 C.J.S., p. 620, Evidence, par. 715. (Hn 3) The material inquiry is whether or not the photograph is a fair and accurate reproduction and representation of conditions as they existed at the time of the collision involved. Cinderella Foods, Division of Stevens Industries, Inc. v. Miller (Miss.), 52 So.2d 641; Wheat v. Teche Lines, Inc., 181 Miss. 408, 179 So. 553.
(Hn 4) The time at which a photograph offered in evidence was taken is important only with reference to the question of probability of change in condition of the object or objects portrayed. The mere fact that a photograph was taken at a time different from that in question does not render it inadmissible if the witness is able to verify it as a substantial representation of the conditions as they existed at the time in question. (Hn 5) Nor does the fact that the conditions were somewhat changed before the photograph was taken render the photograph inadmissible if the changes were not material, and if the changes are carefully pointed out and brought to the jury's attention. 20 Am. Jur., p. 611, Evidence, par. 731.
(Hn 6) In the case that we have here, however, Horn did not testify that the conditions that existed at the time the photographs were made were the same as the conditions that existed at the time of the collision involved. Nor was it shown by the testimony of any other witness that the conditions were the same. Under these circumstances, we are unable to say that the trial judge was in error in refusing to admit the photographs in evidence.
(Hn 7) It should be noted also that the original photographs, which were in the hands of the witness Horn at the time that he was examined, were not sent up as a part of the record on this appeal. We have not seen the photographs; and if the witness had testified that they were fair and accurate representations of the conditions as they existed at the time of the collision, we would still be unable to say that the refusal of the trial judge to admit the photographs in evidence constituted reversible error. Le Barron v. State, 107 Miss. 663, 65 So. 648.
It is next argued that the court erred in refusing to grant two instructions requested by the appellant. In (Hn 8) Instruction No. 2, which the court refused to grant, the court was requested to charge the jury that there was no obligation on the part of the defendant to furnish a flagman at the Hickory Street crossing. But the declaration did not charge, and the plaintiff did not attempt to show, that the defendant was required to furnish a flagman at the crossing; and there was no error in the refusal of the court to grant that instruction. (Hn 9) Instruction No. 6, in the form requested, amounted in effect to a charge that the plaintiff could not recover in any event if the bell of the locomotive was kept ringing continuously for a distance of 300 yards before it reached the crossing. That instruction was likewise properly refused.
We find no reversible error in the record and the judgment of the lower court is therefore affirmed.
Affirmed.
All justices concur.