December 12, 1960.
1. Appeal — directed verdict — evidence — how viewed.
On appeal from judgment entered on directed verdict at close of plaintiffs' evidence, the Supreme Court would have to view record in light of most favorable conclusions which jury could reasonably have drawn therefrom in plaintiff's behalf and would have to treat as proved all material facts which evidence established, either directly or by reasonable inference, in plaintiffs' favor.
2. Railroads — right to occupy a public crossing for its legitimate business purposes without any warning — general rule — exception.
Railroad has right to occupy a public crossing for its legitimate business purposes without any warning thereof by lights or otherwise, except that further warning is required if conditions and circumstances are such that railroad employees know, or in exercise of reasonable care and caution should know, that one driving upon a highway at reasonable speed in automobile properly equipped with lights and carefully operated could not, or might not, see the railroad cars in time to avoid colliding with them.
3. Railroads — dangerous crossing — evidence — testimony had to yield to evidence of the physical facts.
Where, in action against railroad for wrongful death of motorist in collision between motorist's automobile and railroad car standing on crossing, photographs and engineer's plats shown by plaintiffs revealed that there was no steep hill which, as indicated by some testimony, would prevent automobile lights from revealing presence of boxcar until automobile was within 30 to 100 feet of crossing, such testimony had to yield to evidence of the physical facts, and, therefore, such testimony could not raise jury question.
4. Evidence — measurements and distances based on memory, estimate, or casual observation must yield to actual measurements.
Testimony even of disinterested and unimpeached witnesses on subjects of measurements and distances which is based merely on memory, estimate, or casual observation must yield to that which is based on actual measurements.
5. Evidence — expert witnesses — opinion as to whether railroad crossing was a dangerous crossing incompetent as an attempt to invade jury's province.
In action against railroad for wrongful death of motorist whose automobile struck railroad car standing across railroad crossing, attempt to have civil engineer and surveyor testify, as expert witnesses, as to whether crossing involved was a dangerous crossing and was extrahazardous to traveling public especially at night constituted an attempt to invade jury's province by seeking an opinion.
6. Appeal — evidence — plaintiff could not complain of court's refusal to permit questioning of witness as to particular matter absent from record what the response of the witness would have been.
Upon appeal from adverse judgment, plaintiff could not complain of trial court's refusal to permit plaintiff to question witness as to particular matter, in absence of showing by plaintiff as to what witness' response would have been.
Headnotes as approved by McElroy, J.
APPEAL from the Circuit Court of Adams County; JAMES A. TORREY, Judge.
Melvin, Melvin Melvin, Laurel; Laub, Adams, Forman Truly, Natchez, for appellants.
I. The rule to be applied in determining whether a party is entitled to a directed verdict has been stated in many of our cases. The Court must look solely to the testimony in behalf of the party against whom the directed verdict is requested, and, taking that testimony as true, along with all reasonable inferences which could be drawn therefrom favorable to said party, if it could support a verdict for him, the directed verdict should not be given. Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827; Boyd v. Illinois Cent. R. Co., 211 Miss. 409, 52 So.2d 21; Brotherhood of Railroad Trainmen Ins. Dept., Inc. v. McLemore, 228 Miss. 579, 89 So.2d 629; Brown-Miller Co. v. Howell, 224 Miss. 136, 79 So.2d 818; Buffalo Ins. Co. v. Purvis, 224 Miss. 70, 79 So.2d 532; Buntyn v. Robinson, 233 Miss. 360,
102 So.2d 126; Callaway v. Adams, 206 Miss. 443, 40 So.2d 73; Cole v. Tullos, 228 Miss. 815, 90 So.2d 32; Dufore v. Continental Southern Lines, Inc., 219 Miss. 296, 68 So.2d 489; Hendrickson v. Union Pacific R. Co., 17 Wn.2d 548, 136 P.2d 438, 161 A.L.R. 96; Hendrix v. Griffin, 231 Miss. 582, 96 So.2d 909; Illinois Cent. R. Co. v. McNeil, 174 Miss. 860, 39 So.2d 490; Louisville N.R. Co. v. Whisenant, 214 Miss. 421, 58 So.2d 903; Magers v. Okolona, H. C.C.R. Co., 174 Miss. 860, 165 So. 416; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562; Richardson v. Liddell, 222 Miss. 772, 75 So.2d 469; Stratham v. Blaine, 234 Miss. 649, 107 So.2d 92; 44 Am. Jur., Sec. 501 p. 741.
II. The evidence here shows without doubt that the crossing here involved was, at the time, an extrahazardous crossing. Atlantic Coastline R. Co. v. Johnston (Fla.), 74 So.2d 689; Broberg v. Northern Pacific R. Co., 120 Mont. 280, 182 P.2d 851; Carson v. Baldwin, et al, Trustees, 346 Mo. 984, 144 S.W.2d 134; Chicago N.W.R. Co. v. Netolicky, 67 Fed. 665; Doty v. Southern Pacific Co., 186 Oregon 308, 207 P.2d 131; Evans v. Erie R. Co., 213 Fed. 129; Evans v. Pennsylvania R. Co., 154 F. Supp. 14; Flagg v. Chicago G.W.C. Co., 143 F.2d 90; Holt v. Thompson, 115 F.2d 1013; Incret v. Chicago M. St. P. P.R. Co., 107 Mont. 394, 86 P.2d 12; John F. Ivory Co., Inc. v. Atlanta Coast Line R. Co., 187 Va. 857, 48 S.E.2d 242; Johnson v. Union Pacific R. Co., 157 Kan. 633, 143 P.2d 630; Mallett v. So. P. Co., 20 Cal.App.2d 500, 65 P.2d 93, 68 P.2d 281; Robertson v. Missouri Pacific R. Co. (La.), 165 So. 527; Russell v. Chicago, R.I. P.R. Co., 249 Iowa 664, 86 N.W.2d 843; Smith v. Sherwood Township, 62 Mich. 159, 28 N.W. 806; Squyres v. Bouldin, 191 La. 249, 185 So. 14; St. Louis Southwestern Co. of Texas v. Duffey (Texas), 308 S.W.2d 202; 161 American Law Reports pp. 119, 123, 129, 132.
Brandon, Brandon, Hornsby Handy, Natchez, for appellee.
I. The crossing was not one requiring warnings other than the occupancy of the crossing by the train and the presence of the "Mississippi Law Stop" sign. Frazier v. Hull, 157 Miss. 303, 127 So. 775; Gulf, M. N.R. Co. v. Addkison, 189 Miss. 301, 194 So. 593; Gulf M. N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, M. N.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Hardaway Contracting Co. v. Rivers, 181 Miss. 727, 180 So. 800; Holt v. Thompson, 115 F.2d 1013; Illinois Cent. R. Co. v. Underwood, 235 F.2d 868; Jackson City Lines v. Harkins, 204 Miss. 707, 28 So.2d 102; Magers v. Okolona, H. C.C.R. Co., 174 Miss. 860, 165 So. 416; Mississippi Export R. Co. v. Summers, 194 Miss. 179, 11 So.2d 429, 905; Mobile O.R. Co. v. Bryant, 159 Miss. 528, 132 So. 539; Rhodes v. Eullilove, 161 Miss. 41, 134 So. 840; S.H. Kress Co. v. Sharp, 156 Miss. 693, 126 So. 650, 68 A.L.R. 167; Snyder v. Campbell, 145 Miss. 287, 110 So. 678; Spilman v. Gulf S.I.R. Co., 173 Miss. 725, 163 So. 445; Summerford v. Illinois Cent. R. Co. (Miss.), 196 So. 264; 32 C.J.S., Evidence, Sec. 492.
II. Warnings, in addition to the occupancy of the crossing by the train then engaged in its legitimate railroad business, were afforded and given. Gulf M. N.R. Co. v. Addkison, supra; Gulf M. N.R. Co. v. Holifield, supra; Gulf, M. N.R. Co. v. Kennard, supra; Illinois Cent. R. Co. v. Underwood, supra; Mississippi Export R. Co. v. Summers, supra; Spilman v. Gulf S.I.R. Co., supra.
The appellants, wife and child of Dwight Russell, deceased, brought this action in the Circuit Court of Adams County against the appellee, Mississippi Central Railroad Company, to recover damages for the alleged wrongful death of the husband and father.
After the plaintiff had closed her case, there was a directed verdict given on behalf of the defendant and judgment was entered accordingly.
The principal grounds assigned for error were the sustaining of the motion for a directed verdict on behalf of the defendant railroad company and the refusing of the plaintiffs' questions to witnesses whether or not the crossing was easy to see at nighttime.
(Hn 1) In determining whether the lower court erred in excluding the evidence, we must view the record in the light of most favorable conclusions in appellants' behalf which the jury could reasonably have drawn therefrom and treat as proved all material facts in appellants' favor which the evidence established either directly or by reasonable inference.
The appellant decedent was instantly killed when his automobile struck the third car of a train standing across the Liberty Road near Natchez, Mississippi. His automobile ran into a box car which blocked the road. The train crew was carrying out the railroad's business in using the spur track running into the Johns-Mansville Plant. The appellant decedent was traveling west on a paved road twenty feet in width.
If appellant made out a case for the jury, it was the testimony of several witnesses who testified to the general effect that the road was steeply downgrade for a considerable distance as one approached the crossing from the east and that it flattened out within 100 feet or less before reaching the railroad crossing. They also stated that because of this topography, the lights of an automobile would not allow the driver of an automobile to see the train until the vehicle had descended this hill and reached the flat or level portion of the road, when the vehicle was within 30 to 100 feet of the crossing. There was considerable testimony about weeds along the roadway, high banks, and other conditions along the road east of the crossing, but we are of the opinion that this testimony did not tend to bring appellants' case within the exception to the rule hereafter stated.
The accident happened around 12:15 on the morning of December 12. It is in evidence that the deceased had worked in this community at different times for several years as an employee of an oil company and that the company had wells in the Liberty Road area, the road in question.
All witnesses testified that the Liberty Road made a curve some 1,100 feet northeast of the crossing. Maps and photographs were introduced showing that the Liberty Road was straight some 700 or more feet east of the crossing.
It is in evidence that the whistle was blowing, the bell ringing and the engine was lighted before making the crossing; the train had been across the crossing for a minute and had stopped for half a minute before the accident.
(Hn 2) We believe that this case is governed by Gulf M. and N. Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750. "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 employees 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, or, in other words, as said by the Supreme Court of Alabama in the case of St. Louis-San Francisco Railway Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110: 'The employees of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at reasonable speed will observe the cars upon the crossing in time to avoid coming into collision with them.'" This case is followed in Mississippi Export Railroad Co. v. Summers, 194 Miss. 179, 11 So.2d 429.
The rule is firmly established in this state that a railroad has the right to occupy a public crossing for its legitimate business purposes and without any warning thereof by lights or otherwise. Boyd v. Illinois Central R.R. Co., 211 Miss. 409, 52 So.2d 21. There is an exception to this rule, which is recognized by the Boyd case and many others, to the effect that futher warning is required when the conditions and circumstances are such that the employees of the railroad company know, or in the exercise of reasonable care and caution should know, that a person driving upon the highway at a reasonable speed in an automobile properly equipped with lights, and carefully operated, could not see or might not see the cars in time to avoid a collision therewith.
(Hn 3) We will assume for the purpose of this opinion that if the evidence for appellants would have justified a finding that there was a steep hill descending from the east to a point near the crossing where the road became flat, or nearly flat, so that lights of a vehicle approaching the crossing from the east would not reveal the presence of the box car until the vehicle was within 30 to 100 feet of the crossing, then appellants would have brought their case within the exception to the rule, as stated above. If the oral testimony of the witnesses was all that was before the court it may be that appellants would have made out a case that would withstand a motion for a directed verdict. But even under the rule that the evidence must be viewed in the light most favorable to appellants, as already stated, appellants' proof did not make a case for the jury for the reason that photographs and engineers plats shown by appellants reveal the physical facts. These photographs and plats and the testimony of appellants' engineer show that there is no steep hill as indicated by some of the oral testimony. It shows that the roadway descends slightly towards the crossing for about 600 or 700 feet and there is no abrupt dip sufficient to have an appreciable effect on headlights of an automobile approaching the crossing from the east. The testimony must yield to these physical facts.
This rule is stated by the following authorities. S.H. Kress Co. v. Sharp, 1930, 156 Miss. 693, 126 So. 650, 651, 68 A.L.R. 167; Hardaway Contracting Co. v. Rivers, 1938, 181 Miss. 727, 180 So. 800; Mobile O.R. Co. v. Bryant, 1931, 159 Miss. 528, 132 So. 539; 32 C.J.S. Evidence, Sec. 492; Illinois Central Railroad Co. v. Underwood, 1956, (U.S.C.A. 5th), 235 F.2d 868.
(Hn 4) "The testimony even of disinterested and unimpeached witnesses on the subjects of measurements, distances and the like, which is based merely on memory, estimate or casual observation, must yield to that which is based on actual measurements." S.H. Kress Co. v. Sharp, supra.
"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." Mobile O.R. Co. v. Bryant, supra.
This established law of Mississippi and elsewhere controls in this case wherein consideration is given to the testimony of the witnesses, plats of survey and photographs in the record of the cause in the trial court.
The appellants insist that the Boyd case, supra, entitled them to go to the jury. We find that in the Boyd case the railroad did not comply with the statute in regard to the crossing sign and that the topography of the roadway approaching the crossing was considered together with the fact of the failure to maintain the stop sign and the further fact that not a box car but an empty flat car was across the roadway, the sides of which were only 15 to 18 inches in height. We do not think the Boyd case is applicable here. (Hn 5) The plaintiff assigns as error the court's refusal to permit plaintiff to question witness on whether or not the crossing was an easy or defective crossing to see at night. The record shows that the court permitted the witness to testify fully as to facts which witness observed. The plaintiff did not make a showing of what the witness' testimony would be and the Court has no way of knowing whether the testimony would be competent or not. The question as to the opinion of a witness was sustained inferring that this was invading the province of the jury. The error assigned refusing the civil engineer and surveyor to testify as expert witnesses regarding whether or not the crossing involved was a dangerous crossing, and extra hazardous to the traveling public, especially at night, was clearly invading the province of the jury in seeking an opinion. The engineer testified to all facts observed by him. (Hn 6) The plaintiff cannot complain of the court's ruling since no showing was made of what the response of the witness would have been.
The authorities referred to simply mean that the railroad company had the right to assume that Russell was complying with the law. If he had been, it is manifest that the collision would not have occurred.
After careful consideration of all appellants' contentions, we are of the opinion that the lower court was correct and should be affirmed.
Hall, P.J., and Lee, Arrington and Gillespie, JJ., concur.