Opinion
No. 34821.
April 13, 1942.
1. RAILROADS.
Whether engineer and fireman were negligent in failing to give warning of train's approach after they came within plain view of perilous situation occasioned by tractor driver's attempt to get tractor and combine across plantation crossing, apparently unconscious of train's approach, was for jury, notwithstanding there was no statutory duty to blow whistle or ring bell when approaching plantation crossing.
2. TRIAL.
Instruction that sole issue on question of railroad's negligence, if any, was whether engineer in exercise of reasonable care did all he could to stop train when it became reasonably apparent that tractor at plantation crossing was in a position of peril, was erroneous in that it eliminated issues as to duty to give warning if such warning was required in the exercise of reasonable care to avoid collision after peril was discovered, and as to the maintenance of a suitable crossing for a necessary plantation road at point of accident, notwithstanding instructions conflicting with the one first mentioned were granted plaintiffs on such issues (Code 1930, sec. 6129).
APPEAL from the circuit court of Sunflower county, HON. S.F. DAVIS, Judge.
Cooper Thomas, of Indianola, for appellants.
The verdict of the jury was against the overwhelming weight of evidence.
It is a common sense rule of reasonable care in the operation of a locomotive that either the engineer or the fireman should be on the lookout all the time.
The appellants are not contending in this appeal that it was the statutory duty to sound the alarm on the approaching of this crossing. It is our position, however, that there was the common law duty on the part of the operators of this locomotive at the moment they should have seen that the tractor driver was unaware of their approach, and by a warning toot of their whistle, or ringing of their bell, they could have prevented the accident.
The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.
Fuller v. Illinois Cent. R.R. Co., 100 Miss. 705, 56 So. 783.
When the engineer saw and appreciated the peril, it was his duty to use every reasonable means to prevent the collision.
Gulf S.I.R.R. Co. v. Williamson, 162 Miss. 726, 139 So. 601; Y. M.V.R.R. Co. v. Daily, 157 Miss. 3, 127 So. 575; Miss. Cent. R.R. Co. et al. v. Aultman et al., 173 Miss. 622, 160 So. 737.
In this case, we say the fireman either saw or should have seen the situation in time to give a warning signal which would have saved the accident. He did not have to stop the train, although he should have seen the situation in plenty of time to have stopped the train, but all he had to do was give a warning signal.
The instruction complained of confines the issue of negligence to the one question of the duty of the engineer. It completely omits the negligence or duty of the fireman. It assumes that only one employee of the railroad company could be guilty of negligence, resulting in the accident. It eliminates the issue of a crossing improperly maintained which would be the negligence of other employees. It eliminates the issue of the undergrowth and other objects to obstruct the view of those using the crossing. Even more vital than any of the above, this instruction completely leaves out the issue of what the engineer should have done in giving warning. It confines the issue to stopping the train, when the position of peril was first observed. The jury on that instruction might well have said that well they did not believe the engineer could have stopped the train after he saw the position of peril and completely left out the duty of the engineer to blow his whistle or ring his bell, when the position of peril should have been seen. It likewise leaves out the issue of the duty of the fireman to ring a bell or blow his whistle when the position of peril is known, or should have been known. This instuction therefore completely leaves out of consideration the issue of the common law duty of the engineer and fireman to blow the whistle or ring the bell or give warning signal independent of statutory duty to give such warning at a public crossing.
Moody Davis, of Indianola, for appellee.
Counsel argue that the engineer and fireman, each charged with separate and distinct duties in operating a train, did not do all within their power to avoid the accident when they discovered appellant's property in a position of peril.
It is well settled that the engineer in charge of a locomotive is only required to maintain a lookout down the right-of-way of the track.
It is also well settled that the engineer in control of a locomotive is entitled to assume that an apparently competent person driving any vehicle toward or on a crossing in the clear of the track will stop such vehicle before it reaches the track.
It is likewise well settled that those in charge of a locomotive are under no duty to stop or slacken the speed of the train until it becomes reasonably apparent to them that the person approaching the track will ignore and disregard his own safety and drive onto the track in front of the approaching train, and when this becomes reasonably apparent to the engineer it then becomes the engineer's duty to do all in his power to prevent any accident.
N.O. N.E.R.R. Co. v. Keller, 162 Miss. 392, 138 So. 358; M. O. Ry. Co. v. Johnson, 157 Miss. 266, 126 So. 827; M. O. Ry. Co. v. Bryant, 159 Miss. 528, 132 So. 539.
It is clear from the testimony that the engineer and fireman were looking down the right-of-way as they were required to do and in so doing they could not see around the curve; that as they came around the curve and into the straight of the track they saw this tractor for the first time being driven on the track in front of this rapidly moving train which was due at the time and which the tractor driver, according to his testimony, knew was due; and that, immediately the servants of the railroad company in charge of the train did all within their power to avoid the accident. All they could do was to apply the brakes in emergency which they did. It is also clear that the driver of this tractor made no reasonable effort to ascertain if this train was coming and drove onto the track in disregard of his own safety.
A train of this weight and going the speed this train was going cannot be stopped within a short distance as the evidence clearly shows and as this court has recognized in many of its decisions.
Appellants say that the engineer should have blown his whistle. The engineer and fireman both said that the engineer did not have time to do this. Blowing the whistle would not have avoided the accident as this negro was driving onto the track when the train turned into the straight of the track and these two men saw him. To have blown the whistle would have resulted in delaying the application of the brakes and the train would have hit the tractor at full speed, resulting in all probability in the death of the tractor driver and perhaps a wrecked train and serious injury to the passengers and crew.
The verdict of the jury was not against the weight of the evidence.
A. V. Ry. Co. v. McCoy, 105 Miss. 737, 63 So. 221; Buffington v. Gulf S.I. Ry. Co., 186 Miss. 132, 188 So. 563; Billingsley v. I.C.R.R. Co., 100 Miss. 612, 56 So. 790; I.C. Ry. Co. v. Roberson, 186 Miss. 507, 191 So. 494; I.C. Ry. Co. v. Sumrall, 96 Miss. 860, 51 So. 545; Jobe v. Memphis C.R. Co., 71 Miss. 734, 15 So. 129; L.N. Y. Ry. Co. v. French, 69 Miss. 121, 12 So. 338; M. O. Ry. Co. v. Bryant, 159 Miss. 528, 132 So. 539; M. O. Ry. Co. v. Johnson, 157 Miss. 266, 126 So. 827.
Appellants cannot complain of instructions where appellee was entitled to peremptory instruction.
Williams v. McClaim, 180 Miss. 6, 176 So. 717; Murry Chev. Co. v. Cotten, 169 Miss. 521, 152 So. 657; Nat'l Life Accident Co. v. Williams, 169 Miss. 604, 146 So. 455; Whitley v. Holmes, 164 Miss. 423, 144 So. 48; Lizna v. Brown, 146 Miss. 758, 111 So. 867.
A verdict right on the merits will not be reversed on the instructions.
Powell v. Newman Lbr. Co., 174 Miss. 685, 165 So. 299; Hale v. Hinkle Merc. Co., 159 Miss. 796, 132 So. 751.
Argued orally by Forrest G. Cooper, for appellant, and by Jefferson Davis, for appellee.
This case was submitted to the jury and the verdict was in favor of the defendant railway company.
The proof discloses that a farm tractor, and what is referred to as a "combine" attached thereto, all of which was thirty-four feet in length, was struck by a passenger train while being driven by a tenant of the plaintiffs at a plantation crossing, and the tractor virtually demolished. The train first came into view from a curve at a distance of 317 feet from the crossing, and the tractor was seen by the fireman from that point, when he immediately called it to the attention of the engineer. No alarm was given, and although the defendant was under no statutory duty to blow the whistle or ring the bell when approaching such a crossing, nevertheless, on the question of whether the engineer and fireman were negligent in failing to do everything reasonably possible to avoid the accident after coming within plain view of the perilous situation occasioned by the attempt of the tractor driver to get the outfit across the track, there was an issue for the jury whether or not, in the exercise of reasonable care to avoid hitting the tractor, a warning should have been given when they saw that the driver was apparently unconscious of the approach of the train.
It was shown without conflict in the evidence, that when the driver of the tractor stopped on the right-of-way some 12 or 15 feet distant from the track, to change gear before going thereon, he could not then see the approaching train — in fact, the testimony on behalf of the plaintiffs showed, without dispute, that the train first came in sight as he proceeded forward after having stopped as aforesaid on the right of way, which was 30 feet wide on his side, and looked in the direction from which the train was coming; and the engineer testified that he was within 150 feet of the crossing before he saw the tractor about to enter onto the track. But the fireman testified that it was within 3 or 4 feet of the rails when the train came out of the curve 317 feet away, as aforesaid. Under this state of the proof the court below granted an instruction in favor of the railroad company in the following language: "The Court instructs the jury for the defendant that on the question of defendant's negligence, if any, in this case, there is but one issue and one alone and that is whether or not the engineer in charge of the defendant's train while in the exercise of reasonable care in the operation of the train did all he could do to stop the train when it became reasonably apparent to him that the plaintiff's property, that is, their tractor and combine, was in a position of peril; and further, if you believe from the preponderance of the evidence in this case that the engineer in charge of the train did all within his power to stop the train when it became reasonably apparent to him that the driver of the tractor was going to drive on to the track in front of the train, then it is your sworn duty to return a verdict for the defendant, and this is true regardless of the speed of the train or whether or not the train's whistle was blown or its bell rung."
This instruction was equivalent to a peremptory, even when considered in the light of those given the plaintiffs, since it was shown, without dispute, that the engineer and fireman did all that they could to bring the train to a stop as speedily as possible after they came within 150 feet of the crossing. It wholly ignored any duty that these employees of the defendant may have owed to promptly blow the whistle or ring the bell when the train came into plain view of the tractor and was 317 feet from the crossing, if the jury should have believed from a preponderance of the evidence that they had time to do so in the exercise of reasonable care, and that such a warning, or one blast of the whistle, would have avoided the accident notwithstanding any negligence on the part of the driver of the tractor.
It is true that certain instructions in favor of the plaintiffs informed the jury as to the duty of the defendant to sound an alarm if required in the exercise of reasonable care to avoid the collision after the peril of the tractor driver was discovered, but the instruction above quoted was in direct conflict therewith when it stated to the jury that there was "but one issue and one alone and that is whether or not the engineer in charge of the defendant's train did all he could to stop the train . . ." We do not mean to hold that it was the duty of the defendant to blow the whistle or ring the bell on the occasion complained of. We merely say that the issue in regard thereto should have been submitted to the jury under the facts and circumstances testified to. The foregoing instruction eliminated such an issue, and it cannot be reconciled with the other instructions; and it likewise eliminates the issue raised by the plaintiff's proof, under Section 6129, Code of 1930, as to whether the defendant was maintaining a suitable crossing for a necessary plantation road at the place in question. The instruction granted the plaintiffs on that issue was also nullified when the jury was told that there "was one issue and one alone" — the duty to try to stop the train.
Reversed and remanded.