Summary
In Mobile O.R. Co. v. Bryant, 1931, 159 Miss. 528, 132 So. 539, 546, the court reversed and dismissed a judgment based upon jury verdict where a lady had been killed at a public crossing where only three seconds elapsed between the time the engineer could see her in a position of peril and the time of the collision of the train with her automobile, the court accepting photographs depicting the situation in preference to the evidence of witnesses consisting of estimates of distance, etc.
Summary of this case from Stapleton v. Louisville Nashville Rd. Co.Opinion
No. 29020.
February 23, 1931.
1. RAILROADS.
Trainmen are not required to anticipate that automobile traveling parallel with track will turn upon track at crossing without stopping or slackening speed.
2. RAILROADS.
In action for death resulting when automobile was struck by train at village crossing, evidence held insufficient to establish railroad's negligence.
APPEAL from circuit court of Lauderdale county. HON. J.D. FATHEREE, Judge.
Carl Fox, of St. Louis, Mo., and Baskin, Wilbourn Miller, of Meridian, for appellant.
The engineer in charge of the motor train was not required to keep a lookout for people in the highway approaching the crossing. If the engineer could have seen and if he did see the deceased approaching in a southerly direction the crossing in question on the road that was parallel to the main line, he had a right to assume (a) that she would observe the law and the stop sign that was immediately in her view and that she would stop her car and look and listen before going on the crossing, and (b) that since he had blown for the crossing and since the bell was ringing and since the train was on schedule time that anybody driving up to the crossing, or being near the crossing, or shortly wishing to use the crossing, were warned and notified of his approach and in a position to keep out of any danger.
M. O.R.R. Co. v. Johnson, 126 So. 827.
When a railroad takes all necessary precautions and gives proper warnings to prevent strangers from being injured at crossings, it seems that a recovery cannot be based on the speed of the train, except in particular cases, as where the peril of the traveler is known to the employees of the company, or where other sounds are prevailing, as of a thunder storm, which may render the sound of the signals indistinguishable.
22 R.C.L., section 243, page 1012.
In the absence of any statutory requirement, there is no obligation upon the company to slacken the speed of its train, under ordinary circumstances at country crossings, and a high rate of speed may be perfectly proper at country crossings, although it might be considered negligence at a crossing in a populous city.
Elliot on Railroads (3 Ed.), section 1655, page 527.
The statute as to signalling at crossings not applying, the duty of the railroad was such only as it owed at common law. Such duty it fully discharged by giving timely and sufficient warnings of the approach of the train.
Hancock v. I.C.R.R. Co., 131 So. 83.
In the absence of legislation regulating the speed of railway trains in rural districts a railroad company has the right as between it and travellers on the highways to run its trains over country highway crossings at any speed it may choose, subject to the common law rule of reasonable care.
Pittsburgh v. Nichols, 130 N.E. 546; Partlow v. Illinois Central Railroad Company, 37 N.E. 663; Sutton v. Chicago, etc., Railroad Co., 73 N.W. 993.
To transport persons and property rapidly is the principal purpose of railroads. To require railroads to generally so reduce their speed at all grade crossings as to avoid collisions with persons who may carelessly or accidently be upon the crossing when a train was approaching would defeat to a great extent the purpose of the existence of railroads. To run trains over grade crossings at a rate of speed reasonably necessary for the accomplishment of the purpose of railroads is always attended with dangers. When using its trains for proper railroad purposes it is generally the right of a railroad company, in the absence of legislative restrictions, to propel them over highway crossings in the way in which they are usually and reasonably run.
Freedman v. N.Y. N.H.R.R. Co., 71 A. 901.
In this particular case there was no negligence rendering the railroad liable at all, and, the court can and should say that in this case under its facts that the sole cause of the accident was the gross negligence of the deceased.
B. O.R. Co. v. Dora Goodman, Admx., 275 U.S. 65, 72 L.Ed. 167.
Reily Parker, of Meridian, for appellee.
Regardless of the Mississippi statute the railroad company's duty under the common law was to use reasonable care in driving trains across a public highway.
I.C. Railroad Company v. Mann, 106 So. 7; Gulf Mobile Northern Railroad Co. v. Hudson, 107 So. 369; I.C. Railroad Company v. Williams, 110 So. 510.
The Railroad Company was under the duty to keep a proper lookout.
Railroad Company v. Williams, 110 So. 510; Hinds v. Moore, 81 So. 1; Mobile Ohio R. Co. v. Johnson, 127 So. 827.
Where warning signals are given, but the speed of the train is such as to render them useless such speed is negligence. This is particularly true when the sound is obstructed by wind and other noises and when intervening obstructions prevent those who are approaching the railroad from seeing coming train.
22 R.C.L., page 1012, section 243.
Under the rule of the common law that a railroad company is required to exercise its franchise with due regard to the safety of its passengers and such persons as may travel on a highway crossing railroad tracks, it is the duty of a railroad company in establishing the rate of speed at which its train may be run, to exercise due regard not only to the safety of passengers but also to all persons in the exercise of ordinary care traveling on a highway across its tracks.
33 Cyc., page 971.
It is negligence to run a train in the nighttime at such a speed as will make it impossible, by the use of ordinary means and appliance to stop the train within the distance in which the obstructions upon the track can be seen by the aid of the headlight of the engine. The application of this rule would seem to require the speed of the train to be such so a stop could be made if an object should be observed on the track at a place where such object had a right to be, such as a public crossing.
Nixon v. I.C.R.R. Co., 60 So. 566; Frazier v. Hull, 127 So. 770; St. Louis S.F.R.R. Co. v. Moore, 58 So. 471.
Where no statutory signals are required, it is a question for the jury as to whether or not any warning is necessary, and if so what warning.
I.C.R.R. Co. v. Mann, 106 So. 7.
Argued orally by J.C. Wilbourn and R.E. Wilbourn, for appellant, and by Marion W. Reily, for appellee.
On the 27th day of September, 1929, the wife of appellee was driving south in an automobile and along a road or street in the unincorporated village of Lauderdale, which said street runs parallel with, and on the east side of, the railroad track of appellant at a distance generally of slightly less than fifty feet. When the said wife reached a point one thousand fifty-five feet south of the depot, she turned to her right and with little, if any, slackening of speed, she suddenly drove upon the railroad track at a village dirt road crossing, and was there struck and killed by appellant's north-bound mail, express, and passenger train. The train at the time was running at the rate, usual at that point, of about twenty-five miles an hour and was exactly on time according to a schedule that had been used by this particular train for three years. The locomotive was a combination gas and electric machine and was equipped with an air whistle and a forty-pound automatic bell, and was being operated by an engineer of long and competent experience. The whistle had been sounded for the station and for all crossings, and according to the overwhelming weight of the evidence the bell was and had been continuously ringing for the distance required by statute of steam locomotives. The day was clear, and the accident happened at 9:04 A.M. The unfortunate lady had lived for some time in the said village, was accustomed to drive about in the immediate community, and, it must be assumed, was acquainted with the long-established schedule aforesaid.
The rate of speed at which decedent was driving when she turned into the crossing, and the rate at which she was traveling when struck, is, as usual, not agreed upon by the witnesses. Only four witnesses would undertake an estimate on this subject, and only one of these for appellee. This witness said: "She was driving between five and six and seven miles an hour, something like that." This witness was at some distance, however, up in the business portion of the village, and his observation of the matter was so poor that he admitted he could not tell whether decedent stopped before going upon the track, whereas all the other witnesses for both sides agree that she did not, and this witness says, too, that he did not hear the bell ring, although the fact that the bell was ringing is established by practically every other observant witness. A witness for appellant, who was also, at the time, up in the business portion of the village near the location of the first witness above mentioned, gave it as his estimate that deceased was traveling at the rate of twenty-five miles an hour at the time she was hit. The other two witnesses, however, were near the crossing, one about one hundred feet therefrom, who said she was going about ten to fifteen miles per hour, and the other about ninety feet away, who said her rate of speed was about fifteen or twenty miles an hour. Let us say, then, giving every possible indulgence in favor of appellee in view of the verdict, that her rate of speed was between eight and nine miles per hour — which would be about twelve feet per second.
The maps and photographs, together with the testimony in respect to actual measurements, show that the distance from the center of the road where the curve begins for the crossing, to the main line track is forty-three feet. The road is approximately twenty feet wide. Deceased was driving on the right-hand side of the road nearest the track. This placed her, therefore, when she began to negotiate the turn, within less than forty feet of the track on which she was hit. Consequently, only three seconds elapsed from the time she turned westward into the crossing until she arrived on the main line track and was struck.
It would require some moment of time after the driver of the automobile had begun the turn into the crossing for the impression or conclusion or realization to register upon the mind of the locomotive engineer that the said driver did not intend to stop; it would require a second for the engineer to get hold of and turn the brake valve, and another second to triple, and for the brakes to take hold, in response to the said valve, the said latter propositions being undisputed in the evidence, and then, as a matter of common sense, certainly another second would intervene before any appreciable response in the reduction of speed of a train running twenty-five miles an hour would result. Thus the three seconds of time that were available here would have elapsed without any reasonable possibility, to say nothing of probability that within his hopelessly short time anything effectual could have been done by the engineer to avoid the collision. Three seconds are only one breath in the respiration of a normal person. Let us look at the second hand on a watch and consider how futile that space is for the effectual checking of a railroad train. It is not disputed that after the engineer discovered the danger, that is to say, as soon as the deceased had definitely started upon the crossing, the engineer then did all in his power to avert the injury, and it is shown by those on the train that the emergency brakes were felt, that is, the effect thereof, before the train reached the crossing, but just where in point of the actual number of feet of course, no witness could well have truthfully said, except to say as they did that it was just before the crossing was reached or just about that time.
This, therefore, brings us upon the two grounds mainly relied on by appellee to sustain the judgment. These may be fairly reduced to, or grouped under, the following contentions: (1) That the employees of appellant saw or should have seen the driver of the automobile as she was traveling southward parallel with the railroad track and should have anticipated that she would turn upon the track at the said crossing without stopping or slackening speed; and (2) that the crossing was in a thickly populated settlement, was much used, wherefore in approaching the said crossing, appellant should have anticipated the presence of a traveler or travelers there, and should as to the speed of the train have kept it so fully under control as to be able safely to check or stop the train before striking a person coming upon said crossing.
The first contention has been ruled upon adversely to appellee in Mobile O.R. Co. v. Johnson, 157 Miss. pages 266, 276, 126 So. 827, 830, in which it was said: "It is to be observed also that these instructions are capable of the construction that it was the duty to maintain a lookout beyond the right of way and to anticipate that a person traveling in proximity thereto would, without taking any precaution in his own behalf, drive suddenly upon the track. A large part of the railroad mileage in this state is skirted on one side or the other by highways with numerous crossings, leading therefrom. It is enough to say, without more, that, if this character of lookout were required, there would be, in order to avoid possible liability, an intolerable recurrence of the throwing on of emergency brakes and an inadmissible interference with the efficient movement of the commerce of the country."
Upon the second proposition we would call attention to the recent case of Hancock v. Illinois C.R. Co. (Miss.), 131 So. 83, 84, in which it was said: "The very purpose of locomotion by steam upon railways is the accomplishment of a high rate of speed in the movement of passengers and freight, and this the law authorizes. To require railroads generally so to reduce their speed at all grade crossings as to avoid collisions with persons who may, carelessly or accidentally, be upon the crossing when a train is approaching would defeat, to a great extent, the purpose of the existence of railroads." And the court went on to say that when the required warnings have been given of the approach of the train, and the statutory stop sign was situated at the crossing — both of which are shown in this case — "a traveler on a highway should not, and ordinarily has no legal right to, ask for more." In the Hancock case the court, however, expressly pretermitted the question as regards crossings much traveled or crowded.
In the present case, upon the issue last mentioned, one witness only was directly interrogated, and in response to the question whether there was much or little traffic at that crossing, he answered: "A good deal, more or less, every day." The answer involves an admixture of opinion and fact, and besides is qualified in such a way as to convey little if any substantial meaning. However, there are five photographs, taken on the day of the accident — the said photographs being manifestly excellent and perfect in clear reproduction, even to the slightest detail, and look upon the said crossing from every angle or view point — which disclose beyond any doubt that this crossing is not within the class to be termed much used, frequently used, or crowded, as the law understands those terms in the connection here involved. These photographs disclose the facts to us by way of demonstration, and we apply the law to the facts thus demonstrated — any verdict to the contrary notwithstanding.
It will be observed that in the Hancock case, supra, the court said that there might be cases where it would be negligence for a railroad train to approach a crossing at a high rate of speed if the physical or atmospheric conditions were such as to interfere with the efficacy of the usual warnings. Under this principle, the further contention is made herein by appellee that a sawmill situated two hundred feet south of the crossing and the noise made by this mill created a physical condition interfering with the efficacy of the customary warnings, and that, therefore, more was required in this particular case, namely, that the train must have been brought to a much lower rate of speed than that at which it was running when it reached this crossing. In applying the said principle, we are disposed to maintain it in that manner whereby the facts shall actually and substantially be such as to bring the case, not dubiously, but well within it; else as a practical matter, and except in the open country, we would soon have the issue whether railroads in the interest and service of the general public are to have the right of way on their tracks or whether the individuals of the public, riding in increasing thousands of automobiles, shall, at crossings, have the first right.
The photographs aforementioned show the said sawmill to have been comparatively small, and the testimony discloses without any serious dispute that, except as to the workers therein, the noise of the mill made no substantial interference with the customary warning signals given by the whistle, and the bell of the train — and as already said these were duly sounded.
The facts of this case, when examined with impartial reason, under the law, are not sufficient to sustain a verdict against the appellant. The judgment is therefore reversed, and the case dismissed.
Reversed and dismissed.