Opinion
No. 34015.
March 18, 1940.
1. RAILROADS.
Occupancy of entire railroad crossing over highway by railroad cars for sufficient time to enable approaching motorist to see them and stop before colliding therewith is sufficient warning of their presence, so as to render failure to give statutory signals by bell and whistle the remote, not the proximate, cause of such collision.
2. RAILROADS.
A railroad company is not required to maintain lights on its cars while occupying crossing over highway for its legitimate business purposes, nor to station a man with lantern at crossing to give warning of its obstruction, unless conditions and circumstances are such that company's employees know or in exercise of reasonable care should know that person driving on highway at reasonable speed in automobile properly equipped with lights and carefully operated cannot or may not be able to see cars in time to avoid collision therewith.
3. RAILROADS.
Where driver of automobile, colliding with boxcar at railroad crossing, was familiar with location of crossing and could and admittedly did see cars occupying entire crossing for distance of 150 to 200 feet, no other warning of their presence was necessary, and railroad company was not liable for resulting injuries to such driver, though there was no flagman with lantern or stop sign at crossing nor any light on rear of locomotive tender and no signals were given by whistle or bell.
APPEAL from the circuit court of Winston county; HON. JOHN F. ALLEN, Judge.
E.M. Livingston, of Louisville, and Flowers, Brown Hester, Robert Burns, Jr., and F.W. Bradshaw, all of Jackson, for appellant.
The proof showed that the plaintiff was traveling in a northerly direction along Highway 15 at a rapid rate of speed, variously estimated at from 50 to 75 miles per hour, before he collided with the car of appellant. It is admitted that the appellee did not obey the statute of the State of Mississippi requiring him to stop before proceeding on the track of appellant, although he knew of the crossing and its exact location, having lived in Louisville for several years, during which time he used the crossing at frequent intervals. Appellee also admitted that he saw the train when he was 200 feet away from it. He claims that his brakes were in good condition and that he applied them immediately but that he could not stop the car and that his collision with the cut of cars was unavoidable on his part.
The court should have instructed the jury to return a verdict for appellant.
Y. M.V.R.R. Co. v. Lamensdorf, 177 So. 50.
Our court has held in more than one case that when a crossing is occupied by a train that this is sufficient warning of its presence on the crossing and that statutory duty to sound signals no longer exists.
Spilman v. G. S.I.R. Co., 163 So. 445, 173 Miss. 725; G.M. N.R. Co. v. Holifield, 120 So. 750, 152 Miss. 674.
In absence of statute, railroad is generally under no duty to station servant at crossing to warn travelers of approach of train. The only requirement placed on railroads at crossings is that they take such reasonable precautions for safety of travelers as ordinary prudence would indicate.
Bon Homie and H.S.R. Co. v. Ferguson, 134 So. 146, 160 Miss. 433; Hancock v. I.C.R.R. Co., 131 So. 83, 158 Miss. 668.
It was further held by our court in the case of G.M. N.R. Co. v. Holifield, 120 So. 750, 152 Miss. 674, that in absence of peculiar environment, railroad employees are justified in believing travelers in automobiles properly lighted and driven will observe cars on crossing at night in time to avoid collision. Further than this, those charged with the operation of a train have a right to anticipate that the driver of an automobile will stop, look, and listen before going onto the crossing; that he will not approach a crossing at a fast rate of speed and in a reckless manner; and, that he will not openly and flagrantly violate the law which was passed for his own protection. This is substantially held in M. O.R. Co. v. Johnson, 141 So. 581, 165 Miss. 397.
A railroad company is not always rendered liable for accidents at crossings for failure to give statutory warning signals. Our court held in Thompson v. Miss. Central Railroad Company, 166 So. 353, 175 Miss. 547, that failure of train operators to give statutory warning signals did not render railroad liable for motorist's death where motorist was found to have seen train and by exercise of ordinary care could have stopped in time to have avoided accident. There was no causal connection between anything that the railroad company did or failed to do and the accident suffered by appellee. It was solely caused by his own recklessness in driving the car at a rapid rate of speed so that he could not have it under control and bring it to a stop within 200 feet after seeing the cars on the crossing.
R.R. Co. v. Cox, 97 So. 7, 132 Miss. 564.
L.B. Jones, of Jackson, and Hoy Hathorn and Jas. L. Davis, both of Louisville, for appellee.
We freely admit that the crossing involved in this case was not in a municipality and that the liability of appellant is not controlled with reference to its acts at the crossing by existing statute of the State of Mississippi, but on the other hand we do say, with all earnestness, that the common law places responsibility upon them.
Backing engines or trains or running unattended cars over a crossing is not negligence if performed with proper precautions. But the fact that the company is engaged in switching does not relieve it from exercising care in crossing a public street, and since such acts are especially dangerous, it is bound to exercise special precautions to avoid injuries to persons lawfully on or approaching the track, particularly where the crossing is infrequently used for switching purposes. It is negligent if it backs its engines or trains or runs unattended cars without proper lookouts, or without proper lights, or other signals or warnings, and without taking such other precautions for the safety of travelers as the circumstances reasonably require. Merely ringing the engine bell does not necessarily absolve the company from the duty of taking other precautions; the means of warning should be as effective on a backing train as on an advancing unreversed train.
52 C.J., page 213, par. 1811, and page 217, par. 1813.
Appellant was under a common law duty to properly conduct its train across this frequently used highway crossing, and this court has specifically recognized that duty in the case of I.C.R.R. Co. v. Dillon, 111 Miss. 520, 71 So. 809, which case supports the action of the court in submitting to the jury the issue of whether or not the whistle was blown or the bell rung.
What is a reasonable warning is a question of fact for the jury and not for the court.
Coyne v. Cleveland, etc., R.R. Co., 208 Ill. App. 425; Coleman v. St. Louis-San Francisco R.R. Co., 130 Kan. 285, 286 P. 254; 52 C.J. 216, par. 1813; Louisville, etc., R.R. Co. v. Morris, 20 S.W. 539.
With reference to making flying switches or kicking cars, the courts have uniformly held that such acts on any crossing, municipal or country, are gross negligence where proper look-outs or watchmen are not maintained.
Peltier v. Louisville, etc., R.R. Co., 29 S.W. 30; Pinney v. Missouri, etc., 71 Mo. App. 577; Florida Central, etc., v. Foxworth, 79 A.S.R. 149.
We submit that if such act is gross negligence, then backing a car, under the circumstances, even though attached to an engine, without maintaining a proper lookout or watchman on the end of the train approaching the crossing is ordinary negligence which would warrant a recovery against the appellant.
About a mile and a half north of the City of Louisville, in Winston County, there is a spur track of appellant railroad company which leads in a northeasterly direction from the main line, and across State Highway No. 15. The main line of the railroad and the state highway are about 125 feet apart at this point, the highway being paved. About 200 feet south of the crossing, there is the crest of a hill in the state highway which prevents a traveler going north from seeing the crossing or cars thereon until the top or nearly the top of this hill has been reached.
Shortly after nine o'clock on the night of May 4, 1938, the railroad employes were placing some box cars for a brick plant served by the spur; and while a cut of the box cars was on the highway crossing, appellee, who was traveling north in an automobile, collided with one of the box cars and was injured. Appellee says that he was entirely familiar with the location of the spur track, and to quote his own language: "I was watching the road all the time, and as quick as I went over the rise on this side of the spur I noticed the box car across the road." He said that he was about 150 to 200 feet from the crossing when he saw the car thereon and that he was driving at the rate of about 50 miles per hour; and that as soon as he saw the box cars he put on his brakes, which were in good condition, but was unable to stop in time because the paved highway was wet, a drizzling rain having fallen, and was in fact to some extent still falling.
He brought an action against the railroad for damages, charging that (1) there was no flagman with a lantern to warn those approaching the crossing; (2) that there was no light on the rear of the locomotive tender; (3) that there was no stop sign at this crossing; and (4) that the signals by the sounding of the whistle or the ringing of the bell were not given. A verdict, although small in amount, was returned in favor of the plaintiff, and the defendant has appealed.
The result in this case is to be controlled by Spilman v. Railroad Company, 173 Miss. 725, 163 So. 445, and Gulf M. N. Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750, in which connection it may be noted that although appellant has strongly relied on those cases in its principal brief, appellee attempted no reply to them and made no effort to distinguish them from the present case. We must decline to modify the opinions in those cases in any respect whatever. The Spilman decision followed the opinion and reasoning in the Holifield case, and the latter is one of the most carefully considered in our books.
In Spilman v. Railroad Co., supra, 173 Miss. at page 731, 163 So. at page 446, the Court said: "We find that every court which has considered the question, including this court in Gulf, M. N. Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750, has held that the occupancy of the entire crossing by a railroad train is a sufficient warning within itself of the presence of the cars on the crossing, and this includes flat cars. Southern Ry. Co. v. Lambert (Ala. Sup.) [ 230 Ala. 162], 160 So. 262. In law, when anything is said to be sufficient, it means that nothing else is required. Since, therefore, the entire crossing was occupied by the railroad cars and had been for a sufficient length of time for a person to see them and to stop before colliding therewith, the said presence of the cars was all the warning thereof that was required, and thereupon the statutory warning by bell and whistle became relegated to the position of actual and legal remoteness, with the result that the failure to give the statutory signals became the remote, and not the proximate, cause, and that the negligence of the plaintiff was the sole proximate cause of the collision, as was held by the learned trial judge."
In the Holifield case, supra, the facts were that the cars occupying the crossing could have been seen for a distance of 60 feet before reaching the crossing, but the plaintiff testified that he did not actually see the cars until within 8 feet of them, and gave as an excuse that the night was dark and the highway was dusty, and that there were no lights or warnings. The Court three times, in the course of its opinion, called attention to the fact that the plaintiff on his own admission, as is the case here, was familiar with the location of the crossing. And in denying liability, the Court said, 152 Miss. at pages 679, 680, 120 So. at page 751: "The appellant had the right to occupy the crossing for its legitimate business purposes, and while so occupying the crossing it was not required to maintain lights on its cars, or to station a man with a lantern at the crossing to give warning that it was obstructed by the cars, unless the conditions and circumstances were such that the employes knew, or in the exercise of reasonable care and caution should have known, that a person driving upon the street at a reasonable rate of speed in an automobile properly equipped with lights, and carefully operated, could not see or might not be able to see the cars in time to avoid a collision therewith. . . . We are of the opinion that the employes of the appellant as reasonable men had the right to assume that, under all the circumstances shown by this record, the occupation of the crossing by these box cars would be visible to a person who was driving along the street in an automobile properly equipped with lights, and who was keeping a constant lookout ahead, in time to allow such person to stop before coming into collision with the cars, and consequently that the proof in this case fails to show negligence on the part of the appellant."
There the specific facts were that the driver could have seen the cars upon the crossing for a distance of 60 feet, and that to a person familiar with the location of the crossing as was plaintiff, the Court held that the presence of the cars was all the warning necessary. In the case presently before us, the plaintiff was familiar with the location of the crossing and could see the cars thereon not only, but on his own admission did actually see them, for a distance of from 150 to 200 feet; and since it held in the Holifield case that, other than the presence of the cars on the crossing, no warning was necessary, it must follow that none other was necessary in this case. See also Billingsley v. Illinois Cent. R. Co., 100 Miss. 612, 56 So. 790; Yazoo etc. R. Co. v. Cox, 132 Miss. 564, 97 So. 7; and Thompson v. Mississippi Cent. R. Co., 175 Miss. 547, 166 So. 353.
The peremptory instruction requested by appellant should have been given.
Reversed, and judgment here for appellant.