Opinion
No. 29234.
December 14, 1931.
1. RAILROADS.
Truck driver driving over private crossing without stopping or looking for train visible for four miles and struck thereby held guilty of gross negligence.
2. RAILROADS.
Evidence upon to which base common-law liability, where passenger train struck truck driver at private crossing, held insufficient to raise jury question.
3. RAILROADS.
Railroad's duty to give signals at private crossing depends upon circumstances existing at particular time.
4. RAILROADS.
Proximity of gravel pit to railroad did not raise jury question whether there were peculiar circumstances requiring warning signals at private crossing.
5. RAILROADS.
Warning to person at private crossing is not necessary until it becomes evident that he will ignore and disregard entirely his own safety.
APPEAL from circuit court of Lamar county. HON. J.Q. LANGSTON, Judge.
Stevens Heidelberg, of Hattiesburg, for appellant.
The crossing in question was a private crossing and not a public crossing.
Gulf Ship Island R.R. Company v. Adkinson, 117 Miss. 118, 77 So. 954; Warren County v. Mastronardi, 76 Miss. 273, 24 So. 199; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446, 38 So. 793; City of Columbus v. Payne, 115 Miss. 170, 124 So. 269; C. G. Railroad Co. v. Burnside, 104 So. 701.
The working of the crossing in question by the Railroad Company did not give it the character of a public road. The Railroad Company is required to keep up private crossings, as well as public crossings.
Section 2169, Code of 1930.
Being a private and not a public crossing, the Mississippi Bell and Whistle Statute has no application.
Gulf Ship Island R.R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954; 3 Elliott on Railroads, sec. 1636; Illinois Central Railroad Co. v. Mann, 141 Miss. 778; Columbus G. Ry. Co. v. Duease, 142 Miss. 713, 108 So. 151; Yazoo M.V. Ry. Co. v. Lucken, 137 Miss. 572, 102 So. 39.
At common law a railroad is bound to exercise reasonable care in the operation of its trains and to avoid injury to persons and animals at all crossings, private as well as public; and if by reason of peculiar or extraordinary circumstances surrounding a crossing and known to the trainmen, ordinary prudence would require an alarm or signal to be given by an approaching train, then its omission is negligence.
27 R.C.L. 1004; I.C.R.R. Co. v. Mann, 141 Miss. 778, 106 So. 7.
In the case of a public highway, the statute requires the giving of signals, regardless of whether persons are seen or not in a position of danger. In other words, under the statute it is the duty of the railroad company to give the signals on approaching a public crossing at all event, and, if a person is injured by reason of a failure to give such signals, the railroad company will be negligent as a matter of law. But in the case of a private crossing which people habitually travel, the duty of a railroad company to give signals would depend upon the circumstances existing at a particular time.
Yazoo M.V. Ry. Co. v. Lucken, 137 Miss. 572, 102 So. 39.
Where an accident happened at a private crossing and because of the peculiar or extraordinary circumstances surrounding that crossing, it is for the jury to say whether or not a signal of any kind was required.
Columbus G. Ry. Co. v. Duease, 142 Miss. 713, 108 So. 151.
The general rule that a railroad company is not required to give any signal on approaching a private crossing may not apply where there are peculiar circumstances.
Illinois Cent. Railroad Co. v. Dillon, 111 Miss. 520, 71 So. 809.
While there is some slight conflict in the authorities as to whether signals are required at private crossings, the decided weight of authority is that they are not ordinarily required unless the statute so provides.
A. V. Ry. Co. v. McCoy, 105 Miss. 737, 63 So. 221.
There not being any reason for requiring the giving of signals and slackening of the speed of railroad trains in approaching the private way, as exists in respect to a public road, and as to require it to be done at every private crossing or opposite every dwelling house near the road would unnecessarily and seriously interfere with and impede the running of trains. It would be unreasonable to require it.
Johnson v. Louisville, etc., R.R. Co., 60 Am. Eng. R. Cases 648; 3 Elliott on Contracts, sec. 1636.
In the absence of any statutory requirement there is no obligation upon the company to slacken the speed of its trains, 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.
3 Elliott on Railroads, sec. 1655.
Hall Hall, of Columbia, for appellee.
A public crossing over the track of a railroad company can either result from a dedication of the ground used for the crossing, to the exclusive use of the traveling public, or it may result from a user by the public for a length of time sufficiently long to estop the railroad company from denying that it was so appropriated.
Adams v. Iron Cliff Co., 78 Mich. 271, 44 N.W. 270; 41 Am. Eng. R. Cas. 414; Pittsburg, etc., R. Co. v. Dunn, 56 Penn. State 280; Webb v. Pollard, etc., R. Co., 57 Me. 117.
It is the duty of a railroad company, in the operation of its trains, to use ordinary care and prudence to prevent injury to the persons of those who may be travelling upon the public highways and have occasion to cross its tracks, whether the specific duty be prescribed by statute or not. And the fact that the statute may prescribe one precaution will not relieve the railroad company from adopting others, which may be dictated by common prudence, so as to safeguard the public using the crossings over its tracks.
White, Personal Injuries on Railroads, 1297, par. 877; Chicago, etc., R. Co. v. Perkins, 125 Ill. 127, 17 N.E. 1; Grand Truck R. Co. v. Ives, 144 U.S. 408.
The care and caution required of railroad companies in the operation of their trains is generally commensurate to the danger to persons incident to the use of crossings and in running trains through towns and cities and over public crossings, or in the vicinity of railroad stations, care and caution must be exercised commensurate with the risk of accidents at such places, and whether or not such care is exercised in a given case will generally be held to be a jury issue where the facts are conflicting.
Hicks v. Pac. R. Co., 64 Mo. 430, 17 Am. Ry. Rep. 273; Beaty v. New Haven, etc., R. Co., 107 Mass. 479; Webb v. Portland R. Co., 57 Me. 117; Hart v. Chicago, etc., R. Co., 56 Iowa 166, 9 N.W. 118; Macon, etc., R. Co. v. Davis, 18 Ga. 679.
The Legislature nor the railroad commission can arbitrarily determine in advance what shall constitute ordinary care or reasonable prudence in a railroad company, each action must stand upon its own merits, and the question is ordinarily one for the jury to determine.
Grand Truck Railway Company of Canada v. Albert Ives, Adm., 36 L.Ed. 485.
A peremptory instruction is proper only where there is no testimony tending to make the opposite party's case.
Strauss v. National Parlor Furniture Co., 76 Miss. 343, 24 So. 703.
Where the evidence is conflicting on an issue, it is proper to present it to the jury.
Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 811.
Hall Hall, of Columbia, and Currie Currie, of Hattiesburg, for appellee.
Where pedestrians continued to use a street, though it was discontinued and not used by vehicles, a plank having been placed so as to facilitate crossing the tracks of the defendant railroad company, the railroad company is charged with knowledge of the use of the crossing, and though one using it might be only a licensee, the company owed him the same duty it owes one crossing at a public crossing.
Illinois Central Railroad Co. v. Dillon, 71 So. 809.
The phrase "implied invitation" in its real value and significance, as derived from its application in the adjudged cases, imports knowledge by the defendant of the probable use by the plaintiff of the defendant's property so situated and conditioned as to be open to, and likely to be subject to, such use.
Allen v. Y. M.V.R.R. Co., 71 So. 386.
An implied invitation to use dangerous premises, as distinguished from a mere licensee, arises when a benefit accrues to the owner from such use, or when the use is in the interest of both parties, or is connected with the owner's business.
Cleveland C.C. St. L. Ry. Co. v. Powers, 88 N.E. 1073, 1077, 173 Ind. 105; Northwestern El. R. Co. v. O'Malley, 107 Ill. App. 599; Plummer v. Dill, 31 N.E. 128, 156 Mass. 426, 32 Am. St. Rep. 463; Dixon v. Swift, 56 A. 761, 98 Me. 207, 29 Cyc. 454.
Conceding that the deceased was guilty of gross negligence which contributed to his own death, it would not bar the appellee of the right of recovery.
Chap. 135, Laws of Miss. 1910; Yazoo Mississippi Valley Railroad Co. v. Williams, 74 So. 835; Pennsylvania Co. v. Cole, 214 Fed. 948.
Appellee's intestate was struck and instantly killed by a rapidly moving passenger train of the appellant at a private crossing on January 23, 1928. The appellee sought to prove that the crossing in question was a public crossing, but the court below gave a peremptory instruction that the crossing in question was a private one.
Taking the evidence more strongly for the appellee, it was shown that the crossing was maintained by the railroad, and that many years ago people were wont to use the road in going to and from the Lee neighborhood to the Hattiesburg highway west of appellant's railroad track and right of way; and that many years ago there was a church on the west side to which people were accustomed to go; and at one time a schoolhouse. There was travel over this crossing, desultory in its nature, for the last ten years. Various witnesses testified to seeing people use the road and crossing. On the west side of the railroad there was a gravel pit. The railroad right of way extended one hundred feet from the track on either side. Adjacent and adjoining the railroad right of way was the state highway sixty feet in width, and further west was the plant of the gravel pit which employed a number of men, and it was shown that perhaps as many as six people used the crossing in a day in connection with their work at the gravel pit. Several hundred feet north of the crossing there extended in a southwesterly direction a spur track from the railroad to the gravel pit, which was used occasionally only by the railroad employees. At the point where the injury occurred, there was no depot nor flag stop; the engineer testifying that he had been running on that railroad for forty years over the place in question and had never seen any person crossing there.
McInnis, the deceased, lived in a house to the east of the right of way and had lived there for about two months, and was sometimes engaged in hauling gravel with his own truck for the gravel pit company and at other times working for them at twenty cents per hour. In going to and from his house to the gravel pit he used this road.
On the occasion in question, the train was going south on time, running on a fixed schedule, a fast passenger train, and usually passed this point at about the same time. There was a flag stop about one-half mile south of this crossing, and on this date the operators of the train had orders to meet a fast train proceeding north at Dragon, the flag stop. Standing on this crossing looking north, a train could be seen for a distance of at least four miles; the one hundred foot right of way on either side of the track had nothing thereon to obstruct the view. It was slightly down grade, and there were no houses, trees, limbs, or growth of any kind to obstruct the vision. The right of way was fenced on the east and on the west and had a gate on the east and on the west sides across this road.
On the day of this accident, appellee's intestate entered from the east side to travel across the right of way and track of the railroad company and proceeded west at right angles with the railroad thirty-two feet, thence southwest ninety-eight feet to a point fourteen feet from the track, thence due west fourteen feet to the railroad track. The only eye witness for the appellee, Lee, testified that when he crossed the track going east along this road he saw the south-bound train coming, and, when he reached the gate, he met McInnis driving in, and that at that time he saw the train moving rapidly coming south, saw the fireman on the east side looking out from the engine, and the train was about one-fourth mile from the crossing, and that McInnis proceeded, and not until he got within about eight or ten feet of the railroad track did he, the witness, realize that the decedent would undertake to pass over the track in front of the on-coming train; that when McInnis was at a distance of eight feet the train was within one hundred and fifty feet of the crossing; that without stopping, looking, or apparently paying any attention McInnis drove on the track. He said no warning was given by the blowing of the whistle or ringing of the bell or otherwise. He is strongly contradicted in this statement; in fact there is evidence to the effect that the witness was not present on that occasion.
The fireman testified in substance the same as Lee, except he testified that a signal was given by the engineer of their approach to Dragon, a meeting point with another train. The fireman says that he saw McInnis when he entered the right of way on the east side; that he was proceeding about ten miles per hour, and when within about fourteen feet of the track he stopped, and suddenly went on again, and when he (the fireman) saw from that point that McInnis was proceeding to go across the track he promptly notified the engineer who immediately put on the emergency brake and stopped the train.
It is undisputed in this evidence that the engineer, being on the west side and his engine extending down the track thirty-five or more feet in front of him, could not see the east gate of the right of way within less than one-half mile of the crossing, and that when he was within two hundred feet of the crossing he could not see the east rail. He stated that he was on the lookout looking straight down the track, and when within one hundred and fifty or two hundred feet of the crossing, being notified by the fireman "man on the track," he immediately put on the emergency brake and stopped within six car lengths. He, as did others, testified that he gave sharp signals by blowing the whistle, being signaled so to do by the conductor for the meeting point at Dragon one-half mile from the crossing. His train was running thirty-five miles an hour, and its schedule was thirty-eight miles per hour without stops.
The court peremptorily instructed the jury that the railroad was not required to give the statutory signals; that the crossing was not a public crossing; that there was no negligence in the operation of the train as to speed, and submitted the case to the jury upon the theory that there was an issue of fact as to the common-law liability of the servants of the railroad company in not giving a warning for this particular crossing, under the circumstances.
The appellee recovered a substantial judgment in the court below. The appellant requested a peremptory instruction as to all the counts of the declaration, which which was refused by the court. On the facts as detailed, there is no question but that appellee's intestate was guilty of gross negligence. The evidence shows that the railroad fireman and engineer sought to stop the train by every means at their command when it became evident that McInnis would undertake to cross ahead of the oncoming train. Is there any evidence upon which to base common-law liability in this case? After a careful and protracted study of this record we must say that no negligence is shown on the part of either the fireman or the engineer. In fact, no sort of negligence can be attributed to the engineer, unless it be said that the fireman was negligent, and his negligence may be imputed to the engineer. Yet the verdict and judgment were against both the engineer and the railroad company.
The suit in this case was filed jointly against the engineer and the railroad company on all counts. The appellee alleged that the negligence of the engineer was the negligence of the railroad company. On this statement of facts, was there any negligence under the rule of law applicable to this case attributable to the fireman, if it be conceded that his negligence may be imputed to the engineer, which we do not here have to decide? The principle applicable has been quoted with approval from 22 R.C.L. 1004, but "a railroad is bound to exercise reasonable care in the operation of its trains and to avoid injury to persons and animals at all crossings, private as well as public; and if by reason of peculiar or extraordinary circumstances surrounding a crossing and known to the trainmen ordinary prudence would require an alarm or signal to be given by an approaching train, then its omission is negligence." The above language was adopted with approval in the case of I.C.R.R. Co. v. Mann, 141 Miss. 778, 106 So. 7, 8.
In Y. M.V.R.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393, 396, the rule is thus stated: "But in the case of a private crossing which people habitually travel, the duty of a railroad company to give signals would depend upon the circumstances existing at a particular time."
This record does not disclose any peculiar or extraordinary circumstances surrounding this crossing and known to the trainmen that would differentiate it from any other private crossing, whether farm crossing or neighborhood road, in the state. The travel over the road was sporadic; there was no stream of travel at any given time known to the railroad or anybody else; there was no necessity for anybody to be along the track; and there was no cut or fill by which one seeking to cross at this point would be trapped and unable to see an on-coming train, such as were the circumstances in the Mann case, supra, and likewise in the case of C. G. Ry. Co. v. Duease, 142 Miss. 713, 108 So. 151, and I.C.R.R. Co. v. Dillon et al., 111 Miss. 520, 71 So. 809.
In the Mann case, supra, there was a cut or fill, on account of which one going on the track could not see the train until he was upon the track. In the Dillon case, it was shown that the crossing was used by one hundred and fifty or two hundred employees at that time and place, and this was known to the trainmen, and that there was a coal chute and houses obstructing the view of pedestrians crossing at this place. And in the Duease case, it was shown that there were obstructions on the right of way.
When it become evident to the fireman that the decedent was going into a place of peril, he immediately gave warning to the engineer, and the record shows that it was impossible for the railroad employees to have avoided the collision with the truck driven by the decedent. But counsel for the appellee argue that because of the proximity of the gravel pit to the railroad right of way there arises a question for the jury to say whether or not there were peculiar or extraordinary circumstances. To this we cannot agree. To say that six or seven people might in the course of a day pass on a country road across the railroad at this point, and therefore require the railroad to give warning, would be to establish a more rigid rule than is contemplated by the language of this court which we have quoted. If we should affirm this case, it would be tantamount to holding that a railroad company must give warning by signal of its approach at every private, as well as public, crossing.
It is undisputed in this record that, when it became apparent that appellee's intestate would disregard his own safety entirely, it was too late for the servants of the company to do anything but stop the train as promptly as possible, which the record shows they did. All the facts of this occurrence have been shown. There was no defect in the train, engine, or appliances, no neglect on the part of the engineer, nor on the part of the fireman; but the appellee's intestate drove on the track in front of a rapidly moving train which was due at the time he was crossing according to its schedule, and of this appellee's intestate was aware or should have known.
As was said in the case of Alabama V.R.R. Co. v. McCoy, 105 Miss. 737, 63 So. 221, it was not within the power of the servants of the railroad in charge of the train to have prevented the accident after he got on the track; and in the case at bar we will say it was not within their power to stop the train or do anything else that would have prevented this accident after it became evident to them that McInnis was going upon the track. It certainly cannot be insisted that the railroad must give a separate warning signal to every person whom it sees upon its railroad right of way, and warning in such a case as this is not necessary until it becomes evident that a party approaching the track will ignore and disregard entirely his own safety.
The peremptory instruction should have been given in this case for the defendant.
Reversed, and judgment here for the appellant.