Summary
In New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825 (1941), the Supreme Court of Mississippi reversed a judgment in favor of plaintiff for damages and directed judgment for defendant railroad where plaintiff drove a truck into the caboose at the rear end of a moving freight train after the crossing had been occupied by some 35 freight cars, a locomotive and tender, in all about one fourth of a mile in length.
Summary of this case from Gross v. Southern Railway CompanyOpinion
No. 34546.
June 14, 1941.
1. RAILROADS.
The failure to ring bell or blow whistle of locomotive does not of itself impose liability upon railroad for damages sustained by motorist in crossing collision, but it is necessary to a cause of action on account of railroad's negligence that it shall have been the proximate or a contributing cause of injury to another, and in order that it shall be a "proximate cause" or a "contributing cause" it must have been a substantial factor in producing the injury.
2. NEGLIGENCE.
An actor's negligent conduct is not a substantial factor in bringing about harm to another if it would have been sustained even if the actor had not been guilty of the particular negligence charged.
3. RAILROADS.
In motorist's action for damages sustained in collision with train at crossing, possibilities and conjecture are excluded in determining the quantum of proof.
4. RAILROADS.
In motorist's action for damages sustained in collision with train at crossing, the motorist had burden of proving that the railroad was guilty of negligence which was a proximate cause or a contributing cause of the collision.
5. NEGLIGENCE.
Where it has been established that the required precautions have not been taken and that there is more than a possibility that had they been taken the injury would not have occurred, the negligent actor must thereupon lucidly show, or the record as a whole must show, that under all the disclosed circumstances the required precautions would, in all reasonable likelihood, have been unavailing, or that the injury would, in all reasonable likelihood, have been sustained even had the negligent act not been done.
6. RAILROADS.
In motorist's action for injuries sustained in collision with the side of a train at crossing, where noise or roar of train was distinctly heard by motorist's witness who was more than a mile and a half away, but motorist who was familiar with the crossing did not observe train until he was within five feet of it, notwithstanding the gleam of large electric headlight in drizzling rain, failure to ring bell or blow whistle was not a "proximate cause" or "contributing cause" and evidence did not sustain verdict for motorist.
ALEXANDER, J., dissenting.
APPEAL from the circuit court of Lamar county, HON. J.C. SHIVERS, Judge.
Heidelberg Roberts, of Hattiesburg, for appellant.
If the whistle had been blown and the bell had been rung, as we claim it was, appellee would have failed to hear it. It would have done him no good. He was not looking; he was not listening. He was using none of his senses to protect himself, but was conducting himself in such manner as to make it impossible for any conduct of the railroad company to avoid the occurrence which naturally resulted. If there were negligence, it was not a proximate or contributing cause of plaintiff's injury. A railroad company is not an insurer of the safety of those using the highways.
Harvey et al. v. Smith, 190 Miss. 130, 198 So. 739.
There is perhaps no principle more universally recognized in the law than this: that when either the common law, or a statute, or a contract requires the giving of notice or warning, it is immaterial that the notice or warning was not given, and no actionable wrong is predicated on the failure to give such notice or warning, when the party has otherwise, within sufficient time, obtained the knowledge which the notice or warning would have furnished, leaving aside those cases where the notice must be served in writing.
Thompson v. Miss. Central R.R. Co., 166 So. 353, 175 Miss. 547; Graves et al. v. Johnson et al., 176 So. 256, 179 Miss. 465; G.M. N.R.R. Co. v. Addkison, 189 Miss. 301, 194 So. 593.
A possibility rather than a believable probability is not a sufficient basis for a verdict and judgment.
Y. M.V.R.R. Co. v. Lamensdorf, 180 Miss. 426, 178 So. 80.
The decisions of the courts under statutes requiring railroad trains to signal by bell and whistle their approach to crossings are not in entire harmony; but the general rule seems to be that, unless the failure to comply with the statute in some manner contributes to the injury, the railroad company is not liable. In other words, there must be some connection between the failure to comply with the statute and the injury; and there must at least be evidence from which a jury may infer that the neglect of the statutory duty caused the injury. While the proper warning on approaching a crossing is the sound of a whistle or the ringing of a bell, no accident can be properly said to be the consequence of the neglect to give such warning if the public is apprised of the danger by other sounds or signals. The injury then is caused solely by the neglect of the injured person to heed the danger. Even where the person injured is a child too young to be charged with contributory negligence, the company will, nevertheless, not be liable unless the negligence shown is the proximate cause of the injury.
22 R.C.L. 182, 183, par. 66.
If it clearly appears that the required precautions would have proved unavailing or that the harm would have been sustained even had the negligent act not been done, the actor's negligent conduct is not a substantial factor.
2 Restatement of the Law of Torts, 1163, sec. 432.
E.F. Coleman, of Purvis, for appellee.
Momentary forgetfulness excuses a person from seeming negligence, or, in short, it is not negligence in this state, and if it does not entirely excuse a person from seeming negligence it will certainly mitigate his negligence. And this fact shall be determined by a jury, that is, whether under the circumstances, momentary forgetfulness is negligence or not shall be determined by the jury.
Street Ry. Power Co. v. McEachern, 109 Miss. 380, 69 So. 185; City of Meridian v. McBeath, 80 Miss. 485, 32 So. 52.
While it is true, as an abstract proposition and in a general sense, that a railroad has a right to a clear track, yet this is true only when the railroad is operating its trains in conformity to law. It has the right to a clear track when acting within the limits of its legal rights, but when acting in clear violation of law, it has no such right.
A. V.R.R. Co. v. Lowe, 73 Miss. 203, 19 So. 96.
Travelers on a highway have a right to insist that these signals be given, not only that they may be warned thereby to keep off the track, but that they may extricate themselves and their property from a position of danger before the arrival of the train; and further that, if it would be a reasonable conclusion upon all the facts in the case that, had the signals been given, the traveler by virtue of the warning might have avoided the danger of injury, then the failure to give the statutory signals may be considered as the proximate cause of the injury or death that results.
R.R. Co. v. Crominarity, 86 Miss. 464, 38 So. 633; Skipwith v. R.R. Co., 95 Miss. 50, 48 So. 964; Fuller v. R.R. Co., 100 Miss. 705, 56 So. 783; R.R. Co. v. Simmons, 150 Miss. 506, 117 So. 345; R.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144.
It has been long and well established in our state that whether the failure to give the necessary crossing signals was the proximate cause of the collision and resultant injuries is a question to be left to the decision of the jury, also the fact whether the signals were given is a jury question.
Sec. 6124, Code of 1930; R.R. Co. v. Crominarity, 86 Miss. 464, 38 So. 633; Skipwith v. R.R. Co., 95 Miss. 50, 48 So. 964; Fuller v. R.R. Co., 100 Miss. 705, 56 So. 783; R.R. Co. v. Lee, 149 Miss. 543, 115 So. 782; R.R. Co. v. Hegwood, 155 Miss. 104, 124 So. 66; R.R. Co. v. Simmons, 150 Miss. 506, 117 So. 345; R.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144.
It is the duty of the court to determine whether, upon the facts which are admitted, found by special verdict or reasonably inferable from the evidence, the actor's conduct is a substantial factor in bringing about harm to another, unless the question is open to a reasonable difference of opinion, in which case it is to be left to the jury.
The question of what actually occurred in any particular case is for the jury, unless this is agreed upon, admitted by the pleadings, found by special verdict or unless the testimony is so undisputed and uncontradictory that there is only one inference which reasonable men could draw from it. If this is the case, the court must determine whether the actor's conduct is a substantial factor in bringing about the plaintiff's harm, unless this question is itself subject to reasonable differences of opinion, in which case it is for the jury.
If the evidence is conflicting or, although not contradictory, is open to two or more reasonable inferences as to what actually took place, the case must be left to the jury. In such a case, if the court believes that under one of the permissible findings of fact there is no reasonable doubt as to whether the actor's conduct is or is not a substantial cause in bringing about the harm the court should give such instructions as may be necessary to cause the jury, if it find such a state of facts exist, to render a verdict in conformity with the court's judgment.
Restatement of the Law, Torts, 1171, sec. 434, and comments thereunder, subsec. (c).
When a jury has decided an issue on conflicting testimony and returned a verdict on its finding of facts upon the conflict, the verdict becomes binding on this court.
Gunter v. Y. M.V.R.R. Co., 145 Miss. 475, 111 So. 105; G.M. N.R.R. Co. v. Seymour, 148 Miss. 456, 114 So. 35; Sackler v. Slade, 148 Miss. 575, 114 So. 396; Green v. Everson, 141 Miss. 129, 106 So. 265.
Appellee, driving a motor truck, ran into the side of a freight train at a public crossing, and was injured, although not seriously. He brought an action against the railroad company charging that the locomotive whistle was not blown nor the bell run as the train approached the crossing.
The testimony to sustain the stated charge is not strong, but we will assume that it was sufficient. The great weight of the evidence points to the conclusion as the more reasonable that appellee struck the caboose at the rear end of the train after the crossing had been occupied by some thirty-five freight cars and a locomotive and tender, in all about one-fourth of a mile in length; and if this were true it would follow without further facts that appellee had no case. Gulf, M. N.R. Co. v. Addkison, 189 Miss. 301, 194 So. 593. But we will lay aside also that question; and will determine the cause as if everything said by appellee were true, supplemented of course by those facts which are undisputed.
The accident occurred about nine o'clock on the night of February 16, 1940. It was raining slightly, some of the witnesses speaking of it as a drizzling rain. The cab of the truck was closed and the windshield wiper was in motion. The occurrence was in a remote section of the Town of Lumberton at Love's crossing and on a street extending eastwardly for about one thousand feet, before reaching the crossing. The railroad ran north and south, and the track in both directions from the crossing was straight for more than a quarter of a mile, and for this distance was open and easily visible at any point within seventy-five feet of the track when approaching the crossing from the west.
Appellee's story is that he entered upon this west to east street, and continued eastwardly thereon at the rate of twenty to twenty-five miles per hour and, without slowing down or looking or listening, ran into the locomotive or tender — he would not say which — and that he did not become aware of the presence of the train until he was within four to five feet of it. The train, as already mentioned, consisted of thirty-five cars and was about a quarter of a mile long. Its speed was about forty miles per hour and its noise or roar was distinctly heard by one of appellee's witnesses who was more than a mile and a half away. Appellee was entirely familiar with the crossing and stated that he had been over it a thousand times. It is not questioned that the locomotive was equipped with the statutory electric headlight in full operation.
Crediting him with sanity, it borders upon the unbelievable that the accident should have occurred as appellee says it did; but it puts an intolerable strain on credulity that reasonable men should be asked to believe, in addition, that as a matter of reasonable likelihood the ringing of a bell on that locomotive would have substantially contributed to an effective awareness on appellee's part. It is a matter of common observation that the gleam of the statutory electric headlight produces, all along for a distance of not less than 150 to 200 feet, in a drizzling rain at night, a radiance of such a pronounced nature as to force itself with startling distinctness upon the sensibilities of any normal mind, unless that mind is at the time unresponsive to all that is around about. If the roar of a train which in the quiet of the night was of such intensity that it was heard a mile and a half away and the gleam of the large electric headlight in the drizzling rain athwart the immediate pathway of appellee were insufficient to make the slightest impression on his sensibilities until he was within five feet of the train, how can he propound the proposition, as more than a conjecture or possibility, that the ringing of a bell would have any earlier aroused him? Of such a state of facts could men of sound discretion, acting impartially, say with real reason otherwise than that it was highly probable that, if the locomotive bell had been rung, there still would have happened to appellee, so far as he was concerned, what did happen?
It is not enough in any case merely that the defendant was negligent. The failure to ring the bell or blow the whistle does not of itself impose liability. If it did, then a man stone-deaf with nobody in sight of him could recover. The statute does not so attempt, even if it could constitutionally do so — however much upon a casual approach there may be a feeling to the contrary. In this, as in all cases, it is necessary to a cause of action on account of the negligence that the latter shall have been the proximate, or a contributing, cause of injury to another; and in order that it shall be a proximate or contributing cause it must have been a substantial factor in producing the injury. And an actor's negligent conduct is not a substantial factor in bringing about harm to another if it would have been sustained even if the actor had not been guilty of the particular negligence charged. 2 Restatement, Torts, sec. 432. The foregoing statement is particularly applicable in those cases where the actor's negligence consists in the failure to take certain precautions which are required by law for the protection of another's person or chattels, of which the requirement to ring the bell or blow the whistle at public crossings is an example. In such a case, if the same harm, both in character and extent, would have been sustained even had the actor taken the required precautions, his failure to do so is not even a perceptible factor in bringing it about and cannot be a substantial factor in producing it. 2 Restatement, Torts, p. 1162.
The foregoing are principles so well established that further elaboration or citation of authority are unnecessary. The problem becomes, then, one of the quantum of proof and the burden of proceeding therewith. And as in all other cases, possibilities and conjectures are excluded from the equation. It is not enough for the injured person, who has primarily the burden of the proof, to say that had the required precautions been taken by the opposite party, the injury might possibly have been avoided, or to propound a conjecture to the same effect. But when it has been established that the required precautions have not been taken and that there is more than a possibility that had they been taken the injury would not have occurred, the negligent actor must thereupon lucidly show, or the record as a whole must show, that under all the disclosed circumstances of the case, the required precautions would, in all reasonable likelihood, have been unavailing, or that the injury would, in all reasonable likelihood, have been sustained even had the negligent act not been done; and while this showing is not required in the sense or to the extent of disclosing it beyond doubt, nevertheless it must be done with fair and reasonable clarity, to be gathered from all the facts and circumstances of the case. 2 Restatement, Torts, p. 1163. Or to put it otherwise, if the evidence discloses that it was highly probable that the injury would still have occurred had there been no negligence on the part of the defendant, the latter's negligence is not to be allowed as a proximate or a contributing cause. 2 Restatement, Torts, p. 1164.
To say on the record in the present case that had the required signals been given the injury would not have occurred is to invoke a possibility or conjecture, and it is not within the legitimate province or power of a jury to convert a possibility into something more by the mere force of a verdict. Teche Lines, Inc., v. Bounds, 182 Miss. 638, 649, 179 So. 747. To thus convert, what, on the facts, is no more than a possibility into something more would be to allow an arbitrary exercise of power by an agency employed in government, and in that connection due process must be remembered as a primary constitutional mandate. In view of what is disclosed by this record taking all that the plaintiff says as true together with the undisputed physical facts it is clear as a matter of all reasonable likelihood that appellee would not have heard the bells if two instead of one had been rung. The facts amount practically to a demonstration that he was both deaf and blind to everything except what he himself was doing, his sensibilities were in an evident state of unresponsiveness to all else; and thus the failure to ring the bell — and that was all that appellant was required to do — disappears as a substantial factor in bringing about the injury; hence appellee cannot recover.
Reversed and judgment here for appellant.
DISSENTING OPINION.
The majority opinion must rest upon the proposition that the negligence of the plaintiff was the sole cause of his injury. He was undoubtedly guilty of both actual and statutory negligence. Had he obeyed the requirement of the law to stop, look, and listen, undoubtedly the injury would not have occurred. Yet if the defendant failed to ring the bell, it, too, was guilty of negligence per se. The majority opinion assumes that it failed to ring its bell, and also that such failure not only was not, but could not have been, a contributing factor in the injury.
In stressing the requirement that verdicts must not be based upon mere conjecture, the Court has drawn upon conjecture to construct a basis for its reasoning. To intimate that since the plaintiff did not see he could not hear, tends to repeal physical laws: to infer the futility of making the statutory signals from the fact of failure to hear the roar of the oncoming train is contrary to our statutory law. When the legislature crystallized the mandate of common prudence into the requirement that travelers before effecting a crossing should stop, look, and listen, it, with perfect consistency, required that whenever the approach of a train gave the traveler reason to stop, it must also give him, by way of warning, something at which to look and something to which to listen. In the considered judgment of the Legislature, such warnings must take the form of lights and bells.
This Court by its opinion has in effect more than intimated that a railroad company may ignore the statutory mandate and conserve wear upon its bells by indulging the assumption that if one can't see the train he won't hear the bell, and if the greater noise of a moving train includes and obscures the lesser tinkle of its bell, such bell is of use only when the train is still. Is it not conjecture to assume that plaintiff was not listening, and listening could not have heard a ringing bell? The noise of a bell is unique, distinctive, and characteristic. The Legislature was not content to leave to travelers the duty of identifying approaching trains by the rumble of their wheels. Nor is it so adequately established as a truism as to attract judicial notice, that one who does not see does not hear. Rather is there support for the truth that one may, by summoning his entire attention to the aid of one of his senses, suspend function of the others. One who looks or reads intently is apt to develop a disturbing insensibility to spoken inquiry, even as one who lends too attentive an ear may borrow responsiveness from vision and leave the listener staring with unseeing eye. Such, indeed, is the etymology and psychology of concentration.
The purpose of the required signals is to attract and arrest attention. It assumes both the possibility and probability of inattention. The majority opinion assumes the fact of inattention and the impossibility of overcoming it. It may be that plaintiff would not have heard the bell had it been rung. But it seems to draw more heavily upon conjecture to say that he would not than that he would.
The testimony is consistent with plaintiff's statement that his car struck the engine or tender of the train. He was following another car at a distance of about two hundred feet. Considering plaintiff's speed (about twenty-five miles per hour), and the length of the train (nearly a quarter of a mile), it is difficult to see how he could have struck the caboose of a train which reached the crossing after the preceding automobile had passed the crossing and interposed itself between such car and that of plaintiff.
It is quite true that although failure to ring the bell or blow the whistle was negligence per se, it is not necessarily a proximately contributing cause of the injury to the plaintiff. The majority opinion correctly states that "it is not within the legitimate province or power of a jury to convert a possibility into something more by the mere force of a verdict." Yet the writer is inclined to doubt whether it is within the legitimate province of this Court to depreciate a reasonable probability into something less by mere judicial fiat.
To say that the failure to ring the bell "disappears" as a substantial factor in the case, is euphemistically to describe as a voluntary withdrawal in the face of overpowering reason a situation where in fact this circumstance is forcibly liquidated by alien assumptions which have been allowed to invade the discussion. It may be that a trial jury, completely aware of its rights and duties, would in this case agree with the views of the majority of this Court. However, the nature of their ultimate verdict is important only to the parties. Our concern is to defend their right to function in the field of proximate cause.