Summary
In Spilman v. Gulf S.I.R. Co., 173 Miss. 725, 163 So. 445, the Mississippi Supreme Court said: "..., we find that every court which has considered the question, including this court in Gulf, M. N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750, has held that the occupancy of the entire crossing by a railroad train [is] sufficient warning within itself of the presence of the cars on the crossing, and this includes flat cars."
Summary of this case from Newman v. Missouri Pac. R. Co.Opinion
No. 31803.
September 30, 1935.
1. RAILROADS.
Under statute requiring locomotive to sound warning signal at public crossing until crossing is passed, no duty is imposed to give signal warning so that it may be heard for greater distance than three hundred yards from crossing and crossing is "passed" when it has become entirely occupied by train, whereupon obligation to continue signals no longer exists (Code 1930, section 6125).
2. RAILROADS. Occupancy of entire crossing by railroad train is "sufficient" warning within itself of presence of cars, including flat cars, on crossing, and statutory duty to sound signals no longer exists ( Code 1930, section 6125).
"Sufficient" means that nothing else is required.
3. RAILROADS. In absence of "peculiar environment," railroad had no duty to give warning upon or at crossing over which flat cars were passing in addition to signals required by statute ( Code 1930, section 6125).
"Peculiar environment" within rule regarding signals which railroad is required to give to warn of presence of cars on crossing means peculiar conditions of hazard which reasonable prudence should have reasonably foreseen would likely lead to collision, notwithstanding ordinary care on part of driver of motorcar approaching crossing.
4. RAILROADS.
In action against railroad for injuries which were sustained when plaintiff's automobile was driven against flat cars which were passing over public crossing, evidence of defendant's negligence held insufficient for jury.
APPEAL from circuit court of Harrison county.
HON.W.A. WHITE, Judge.
Action by B.O. Spilman against the Gulf Ship Island Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Mize, Thompson Mize, of Gulfport, for appellant.
The railroad company did not lawfully occupy the highway. It failed to ring its bell or blow its whistle as required by section 6125 of the Code of 1930 which is mandatory, that every railroad company shall cause each locomotive engine run by it to be provided with a bell, etc., which can be heard distinctly for three hundred yards and shall cause the bell or whistle to be sounded continuously for a distance of three hundred yards from the place where the railroad crosses over the highway and the bell shall be kept ringing or the whistle kept blowing continuously until said crossing is passed.
Section 6128, Code of 1930, provides that it should be unlawful to occupy a crossing for a longer period than five minutes.
L. N.R.R. Co. v. Durfee, 69 Miss. 439; A. V. Ry. v. Anderson, 81 Miss. 587; Southern Ry. v. Floyd, 99 Miss. 519; I.C. Ry. v. Engle, 102 Miss. 878; Terry v. N.O. G.N.R.R. Co., 103 Miss. 679; Jarrell v. Ry. Co., 109 Miss. 49; Owen v. Anderson, 119 Miss. 66.
The violation of a mandatory statute is negligence per se, and it is a question for the jury to determine whether or not such negligence proximately contributed to the injuries.
In the instant case it cannot be doubted for a moment that if these signals had been given that plaintiff would have heard them in ample time to have brought his car to a stop before striking the train because it is a matter of common knowledge that when one hears a train blowing its whistle it causes him to take extraordinary precautions until he finds where it is located and is a reasonable requirement in this day and time when the driver of an automobile has so many things to watch for.
Pascagoula Street Ry. Co. v. McEachren, 109 Miss. 380; Y. M.V. Ry. v. Pittman, 153 So. 382; Simmons v. G. S.I.R.R. Co., 117 So. 345; G. S.I.R.R. Co. v. Simmons, 121 So. 144; A. V. Ry. Co. v. McGee, 78 So. 296; I.C. Ry. v. Mann, 106 So. 7; N.O. N.E. Ry. Co. v. Hegwood, 124 So. 66; City of Vicksburg v. Harralson, 101 So. 713; Bon Homie H.S. Ry. Co. v. Ferguson, 134 So. 146; McWhorter v. Draughan, 98 So. 597.
In the present case the highway was wrongfully obstructed because the railroad company was violating the law when it failed to give the statutory signals.
Atlantic Coast Line Ry. Co. v. Jones, 123 So. 920.
If the railroad company had given the statutory signal then it would have occupied the highway lawfully, but since it failed to do that then it was a trespass.
Solomon v. Continental Baking Co., 160 So. 732; Southern Pacific Ry. v. Kauffman, 50 F.2d 159; Jarrett v. Wabash Ry. Co., 57 F.2d 669; Penn. Ry. Co. v. Fischer, 53 F.2d 1017; Jasper County Lbr. Co. v. McNeill, 76 F.2d 207; Lyon v. St. Louis Ry. Co., 6 Mo. App. 516; Miller v. Atlantic Coast Line Ry. Co., 140 S.C. 123, 138 S.E. 675; Todd v. Philadelphia Ry. Co., 201 Pa. 558, 51 A. 332; Evansville Ry. Co. v. Carbener, 113 Ind. 51, 14 N.E. 738.
The authorities are almost unanimous that where certain kinds of signals as the blowing of whistles is required by statute to be given, the railroad company can make no substitution therefor but must give the signal required by the statute.
52 C.J., 223-224 and 237.
E.C. Craig, of Chicago, Illinois, Burch, Minor McKay, of Memphis, Tenn., and Gardner Backstrom, of Gulfport, for appellee.
Where crossing is already occupied by train of cars, no liability can arise for failure to sound statutory signals as train approaches crossing.
McGlauflin v. Boston Maine Railroad Co., 230 Mass. 431, 119 N.E. 955, L.R.A. 1918E, 790; Schmidt v. Chicago Northwestern Ry. Co., 210 N.W. 370; Nadasky v. Public Service Railroad Co., 97 N.J. Law 400, 117 A. 478; Jones v. Texas Pacific Railroad Co., 154 So. 768; Texas N.O.R. Co. v. Stratton, 74 S.W.2d 741; Gulf, Mobile Northern Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, Mobile Northern Railroad Co. v. Kennard, 164 Miss. 380, 145 So. 110.
Where crossing is already occupied by train of cars, no statutory or common law duty to sound whistle or bell, station flagman on crossing, put out red light or give other warning of presence of train.
St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110; Gage v. Boston Maine Railroad Co., 77 N.H. 289, 90 A. 855, L.R.A. 1915A, 363; Gilman v. Central Vermont Railway Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102; G.M. N.R. Co. v. Holifield, 152 Miss. 674; Texas New Orleans Railroad Co. v. Stratton, 74 S.W.2d 741, 746; Plummer v. Gulf, Mobile Northern Railroad Co., 153 So. 322.
Train occupying crossing is sufficient warning of its presence.
52 C.J. 205, sec. 1795; Huntington v. Bangor A.R. Co., 105 Me. 363, 74 A. 802; Southern Ry. Co. v. Lambert, 160 So. 262.
The plaintiff's own negligence was the sole proximate cause of accident.
Frazier v. Hull, 157 Miss. 303, 127 So. 775; Johnson v. L. N.R.R. Co., 148 So. 822; Southern Railway Co. v. Lambert, 160 So. 262.
Argued orally by S.C. Mize, for appellant, and by Oscar Backstrom, for appellee.
About four miles north of Gulfport there is a spur track of appellee railroad company which leads easterly from the main line towards and to some industrial plants served by this railroad spur line. State highway No. 49, paved with concrete in this area, runs north and south parallel with the main line of the railroad at this point, and about one hundred feet therefrom, and is straight and level for a distance of a quarter of a mile north from the point where it crosses the said spur track, and thence continues parallel with the railroad track for a considerable distance still further north. At 7:15 o'clock on the night of October 31, 1934, a locomotive of appellee was pushing a train of flat cars from the main line of the railroad and along this spur track, across the highway crossing aforesaid, and, when eight of the flat cars had entirely passed over the crossing, appellant, who was traveling south on the highway in an automobile, collided with the ninth of the flat cars then on the crossing, and was severely injured, for which injury he brought suit in two counts. It was dark at the time of the collision, but the night was otherwise clear; there was no smoke, or fog, or rain; the view along the highway was entirely unobstructed so far as adjacent objects were concerned.
The first count is upon the failure of the railroad company to ring the bell or to sound the whistle as required by statute, and the second count, in common law, declares upon the failure of the railroad company to give some other and additional warning at the crossing. The trial judge granted a peremptory instruction for the defendant at the close of the plaintiff's evidence.
The statute, section 6125, Code 1930, in regard to warning signals at public crossings, requires the use of a whistle which can be heard at a distance of three hundred yards or a bell of equal efficiency, and that the bell shall be kept ringing or the whistle shall be kept blowing continuously until the crossing is passed. The crossing is passed when it has become entirely occupied by the railroad train, whereupon the statutory obligation to continue the signals no longer exists. And there is no duty imposed by the statute, under any circumstances, and wherever the locomotive may be placed, to give the signal warnings so that they may be heard for any greater distance than three hundred yards from the crossing.
The undisputed testimony shows that the railroad cars were each approximately forty feet long, and that, as already mentioned, eight of these cars had already passed over the crossing when the collision occurred; that the front car had then passed to a point approximately one hundred yards to the east of the crossing; that the rate of speed at which the train was and had been moving was from three to four miles an hour, while that of the automobile was not less than forty miles an hour, or ten times that of the train. Hence it follows that, when the first car of the train passed the crossing and the crossing was first entirely occupied by the railroad cars, at which instance the obligation to ring the bell or sound the whistle ceased, appellant and his automobile were not less than one thousand yards north of the crossing, and were not within the circumference of the area within which the statutory signals were required to be made heard, and, when appellant arrived within that range or territorial circle, the obligation of appellee as to the statutory signals had terminated. He therefore had not brought himself into personal touch with the duty of appellee to ring the bell or sound the whistle; he had not made contact within the circle within which the railroad owed the statutory duty. The duty to give the whistle or bell signal was one which was not owed to him, for he was beyond the required range thereof until the duty as to any and all persons had ceased. There was no casual connection between the injury and the condition to which and within which the statute applies.
But, if we lay aside that view of the case altogether, 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.), 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 neglience of the plaintiff was the sole proximate cause of the collision, as was held by the learned trial judge. Any other conclusion would lead to the result that, to avoid the charge of concurrent negligence, the whistle would have to be sounded or the bell kept ringing continuously all the while that any part of a train is upon the crossing, regardless of the length of time thereof. A freight train a half of mile long or more would have to give the signals continuously until the last car had passed over the crossing, which would require a bell and whistle of such construction as to be heard a half of mile or more, whereas the statute requires, as to this, only three hundred yards.
As to the second count, averring that it was the duty of the railroad to have given some warning upon or at the crossing in addition to the signals required by statute, we add only that, as held in Gulf, M. N. Railroad Co. v. Holifield, supra, no such additional warnings are required, in the absence of some peculiar environment, and so all the courts hold. And, as explained in So. Ry. Co. v. Lambert, supra, and similar cases, the peculiar environment which is referred to means some peculiar condition of hazard which reasonable prudence should have reasonably foreseen would likely lead to a collision, notwithstanding ordinary care on the part of the driver of the motor car. But the conditions of peculiar hazard relied on here by appellant are no more persuasive than those urged in the Holifield Case, wherein relief was denied. The judgment must therefore be affirmed on both counts.
Affirmed.