Summary
In Hancock v. Illinois Cent. R. Co., 158 Miss. 668, 131 So. 83, 84, where the train was running fifty miles an hour, within a municipality, but outside of the area therein prescribed, as to speed limits, by the railroad commission, and at a crossing which was a part of one of the principal highways of the state, this court 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 laws authorize.
Summary of this case from N.O. N.E.R. Co. v. WheatOpinion
No. 28882.
November 24, 1930.
1. PLEADING.
Permitting railroad, sued for death of motorist, to file special plea during trial setting forth restriction on speed limit area within municipality, held not error.
2. RAILROADS.
Statute did not protect motorist struck by swift train partly within municipality's speed limit area (Hemingway's Code 1927, section 7894).
3. RAILROADS.
Railroad must take such reasonable precautions for safety of travelers at crossings as ordinary prudence would indicate.
4. RAILROADS.
In absence of statute or ordinance restricting train speed, no rate of speed at crossings is negligence per se.
5. RAILROADS.
Where train striking automobile at crossing was exceeding fifty miles per hour, but sounded all necessary alarms, and motorist had unobstructed view up track for one thousand eight hundred feet from stop sign, railroad was not liable.
APPEAL from circuit court of De Soto county. HON. GREEK L. RICE, Judge.
Jere Horne, of Memphis, Tenn., and Logan Barbee, of Hernando, for appellant.
On reaching a frequently used crossing it is the duty of the servants of a railroad company to use reasonable care and diligence in maintaining a proper lookout and to approach the crossing at a reasonable rate of speed and in this case these were questions of fact to be decided by the jury under the conflicting testimony.
Hines v. Moore, 124 Miss. 500.
So many questions are integrated usually into the solution of the question of negligence it is so necessary to examine all the circumstances making up the situation in the case — that it must be a rare case of negligence that the court will take from a jury.
Bell v. Railroad Co., 30 So. 821.
The court erred in permitting the defendants to file, after the plaintiff had closed his case, a special plea providing for the introduction of evidence going to show that railroad commission of Mississippi had modified the six-mile statute at Coldwater by creating a zone, in lieu of the limits, but within the corporate limits of the municipality, and in permitting evidence to be introduced, over objection of plaintiff in support of said plea.
The six-mile statute does not apply only to accidents occurring within the limits of municipal corporations, or zones fixed by the Mississippi railroad commission, but also applies to cases where the entire zone, was covered by the moving train at the moment of collision, and, therefore, at the time, in the active violation of the statute.
Railroad v. Butler, 93 Miss. 554.
The decedent had a right to presume that when the train reached the north line of the zone, at the north end of the station, it would have, by that time, reduced its speed to six miles per hour in obedience to the statute.
Hassie v. Ala. Cent. Railroad Co., 78 Miss. 413.
If the engineer and fireman, or either of them, saw the decedent and appreciated her position of peril before the accident, or they, or either of them, could have seen her in that place of danger had they looked, and then failed to take any measures to avoid killing her, they were guilty of gross and wilful negligence.
Jamison v. I.C. Railway Co., 63 Miss. 33; A. V. Ry. Co. v. Kelly, 126 Miss. 276; Yellow Pine Trustees v. Holly, 142 Miss. 24.
It is the duty of a railroad company in establishing the rate of speed at which its trains 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 the highway across its tracks, the rate of speed to be used in the particular case depending upon the nature of the crossing and other circumstances of the case, and the question whether or not the railroad company has exercised reasonable care and prudence in this respect being one of fact to be determined by the jury from all the circumstances existing at the time. In running through cities and towns, where the presence of persons on the track in the street or at crossings must be anticipated, the speed of the train should be moderated to a reasonable degree, so as to have it under reasonable control.
33 Cyc., page 971.
At ordinary crossings it is the duty of the railroad company to keep a lookout, to run at a reasonable rate of speed, and to give timely warning of the approach of engines or trains. The lookout answers one purpose, the warning another, and the control of the speed yet another; and it often happens that the observance of either without the observance of all will not afford the required or indeed any protection. The lookout is primarily to enable the trainmen to control the movement of the train when they discover danger, while the warning is to give the traveller notice to keep out of the way and the control of the speed is designed to make both the lookout and the warning effective.
22 R.C.L., page 989.
Where leave of the court is necessary to authorize the filing of a plea, the record should show the order granting it; the recital of the fact in the body of the plea amounts to no more than an averment of the pleader.
Pool v. Hill, 44 Miss. 306.
It was the duty of the engineer and fireman to use reasonable care and diligence in maintaining a lookout for people using the crossing, and whether or not they exercised this care and diligence, under the circumstances and whether the fireman discovered the approaching automobile and appreciated the impending danger as soon as he should have done so by the exercise of reasonable care and diligence and exercised this diligence in notifying the engineer, were all questions of fact to be decided by the jury, and not of law for the court.
R.R. Co. v. McGee, 117 Miss. 370, 78 So. 296; R.R. Co. v. Williams, 114 Miss. 236, 74 So. 835; R.R. Co. v. Dillon et al., 111 Miss. 520, 71 So. 809; Power Co. v. McEachern, 109 Miss. 380, 69 So. 185; Hines v. Moore, 124 Miss. 510, 87 So. 1.
May, Sanders, McLaurin Byrd, of Jackson, and Chas. N. Burch, of Memphis, Tenn., for appellee.
The speed statute, section 4043, Code of 1906, Hemingway's Code, section 6667, prescribes the speed limit "within" cities, towns and villages, not without. And its object is to prevent injuries to persons and property situated "within" the limits of municipalities, and not persons and property situated without such limits. The statute has no application when the injury was inflicted outside of the municipal limits, although the train, just before inflicting the injury, had been running within such limits at greater speed than the statutory rate.
Hines, Director-General v. Moore, 124 Miss. 500, 87 So. 1; Railroad Co. v. Butler, 93 Miss. 654, 46 So. 558; N.O. N.E.R.R. Co. v. Martin, 126 Miss. 765.
A railroad company is only required to exercise reasonable care to avoid injury to persons on or near its tracks after discovering their position of peril; it is not required to do everything possible to avoid injury; the standard of action of the average man under the circumstances is the criterion; that in the operation of its train it does not have to check their speed until there is a reasonable apprehension that such person will go on the track, and that if the evidence shows without conflict that the injury complained of could not have been avoided by the exercise of reasonable care, then it is the duty of the court to instruct the jury to find for the railroad company.
Hines, Dir.-Gen. v. Andrews, 124 Miss. 292, 86 So. 801: Hines, Dir.-Gen. v. Thompson, 123 Miss. 634, 86 So. 450; Railroad Co. v. Morrison, 107 Miss. 300, 65 So. 275; Railroad Co. v. Jones, 111 Miss. 159, 71 So. 309; Railroad Co. v. Frazier, 104 Miss. 372, 61 So. 547; Railroad Co. v. Wright, 78 Miss. 125, 28 So. 806; Railroad Co. v. Whittington, 74 Miss. 410, 21 So. 249; Railroad Co. v. Bourgeoise, 66 Miss. 3, 5 So. 629, 14 Am. St. Rep. 534; Railroad Co. v. Brumfield, 64 Miss. 637, 1 So. 905; N.O. N.E.R.R. Co. v. Martin, 126 Miss. 765.
There being no dispute about the facts in this case and the evidence showing conclusively that the defendants were free of negligence, and that the sole proximate cause of the injury was the negligence of the deceased, it was, of course, proper for the court to give the peremptory instruction for the defendants.
In the absence of a statute or of a duly authorized municipal ordinance placing a restriction upon the rate of speed at which railroad trains may be run, no rate of speed at crossings is negligence per se. 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 accidently, be upon the crossing when a train is approaching would defeat, to a great extent, the purpose of the existence of railroads.
22 R.C.L. 1011; 33 Cyc. 971; Newhard v. Pennsylvania R. Co., 19 L.R.A. 563; Freedman v. New York, etc. R. Co., 15 Ann. Cases 464.
Argued orally by Jere Horne, for appellant, and by J.O.S. Sanders, for appellee.
The appellant sued the appellee in the court below for the death of his mother, who was struck and killed by one of the appellee's trains. At the close of the evidence the court below directed the jury to return a verdict for the appellee, and there was a judgment accordingly.
The essential facts disclosed by the evidence are, in substance, as follows. The appellee's railroad runs north and south through the village of Coldwater, and is crossed nine hundred fifty-five feet south of the south end of its station house by a state highway, designated within the corporate limits of Coldwater as Church street. At this intersection, and about fifty feet east of the appellee's right of way, there is a stop sign in accordance with the requirements of section 2, chapter 320, Laws of 1924, Hemingway's 1927 Code, section 7965, Code of 1930, section 6123, which is clearly visible for some distance before it is reached by persons approaching it from the east. When the front end of an automobile going west is even with this sign, a person sitting therein on the front seat of the automobile has a clear view up the railroad track to the north for a distance of four hundred thirty-five feet, and, when the seat of the driver is even with the sign, the driver has a clear view up the railroad track to the north for a distance of one thousand eight hundred feet. In December, probably the 26th day thereof, the appellant's mother attempted to drive an automobile across the appellee's railroad at Church street, and was struck and killed by one of the appellee's south-bound trains. She did not stop the automobile before going on the railroad track, and, had she looked up the track to the north before driving onto it, she would have seen the approaching train, and, had she listened, she would have heard its bell and whistle.
The jury would have been warranted in finding that the train was traveling in excess of fifty miles an hour when it struck the automobile. The bell on the engine of the train was being sounded continuously as it approached the crossing by an automatic bell ringer, and the whistle was being sounded also practically continuously.
The engineer testified that he was at his post on the west side of the engine cab looking ahead as the train approached the crossing; that his view of the crossing was obstructed to the east by the engine, and that he did not see the automobile when it came on the track, but heard or felt the collision and stopped the train immediately. The fireman, whose post was on the east side of the engine cab, saw the automobile as it approached the track, but supposed, until it passed the stop sign, that it would not go thereon, and, when he realized that its driver did not intend to stop, he immediately tried to signal the engineer, but failed to attract his attention on account of the noise of the engine. Had he attracted the engineer's attention, it is hardly probable that the speed of the train could have been sufficiently lowered in time to avoid the collision.
The railroad commission has restricted the six-mile speed limit for trains within the corporate limits of a municipality provided by section 4043, Code of 1906, section 7894, Hemingway's 1927 Code, to an area in Coldwater considerably less than the municipal limits. Church street is not within this restricted area, but the rear of the train was therein when the engine by which it was being pulled struck the automobile which the appellant's mother was driving.
The evidence does not disclose whether the highway at the crossing is traveled much or little, or whether the territory contiguous thereto is thickly or sparsely settled.
During the progress of the trial, the court, over the objection of the appellant, permitted the appellee to file a special plea setting forth this restriction on the speed limit area within the municipality of Coldwater. Assuming that this plea was necessary in order for the appellee to avail itself of this restriction on the speed limit area, the court committed no error in permitting it to be filed.
The appellant contends that the case should have been submitted to the jury for two reasons: First, the train was exceeding the statutory speed limit of six miles per hour when it struck the automobile; and, second, under the common law it was negligence for the train to approach the crossing at the high rate of speed at which it was then running.
This court has several times held that the purpose sought to be accomplished by the six-mile speed limit statute is to prevent injuries to persons and property situated within the speed limit area and not to persons or property situated without such area, and that it has no application to an injury inflicted before a train enters or after it leaves a restricted area, although in close proximity thereto. It is true that in all of these decisions no part of the train was within the restricted area; but that a portion of the train was within such an area at the time an injury was inflicted can be of no consequence, for the statute protects only persons and property that are within this area.
"A railroad company is bound to take such reasonable precautions for the safety of travelers at public crossings as ordinary prudence would indicate." 22 R.C.L. 988. But "in the absence of a statute or of a duly authorized municipal ordinance placing a restriction upon the rate of speed at which railroad trains may be run, no rate of speed at crossings is negligence per se. 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 laws authorizes. To require railroads generally so to reduce their speed at all grade crossings as to avoid collisions with persons who may, carefully or accidentally, be upon the crossing when a train is approaching would defeat, to a great extent, the purpose of the existence of railroads. This rule is obviously rather an abstract one, and yields in concrete instances in which other circumstances than the rate of speed appear." 22 R.C.L. 1011.
It might be, and in most cases probably would be, negligence, or rather the jury could so find, for a railroad train to approach a highway crossing at a high rate of speed in the absence of proper precautions to warn travelers on the highway of its approach, or if the topography of the country or physical or atmospheric conditions at the crossing are such as to interfere with the efficacy of such warnings. But here no such physical or atmospheric conditions existed, and the appellee's employees in charge of the train kept a proper lookout, had an unobstructed view along the track, and sounded all necessary bell and whistle alarms. In addition, as hereinbefore stated, there was a stop sign to the east of the track, as required by the statute, from which there was an unobstructed view up the track for one thousand eight hundred feet in the direction from which the train was coming. A traveler on a highway should not, and ordinarily has no legal right to, ask for more.
We are not here dealing with a street shown to be crowded or much used, and express no opinion on a case including that element.
In Hines v. Moore, 124 Miss. 500, 87 So. 1, relied on by counsel for the appellant, the accident probably occurred in a thickly settled district where "a store and perhaps other objects obstructed the view of the driver of the automobile until he came upon the railroad right of way," and there was evidence that no signals were given as the train approached the crossing.
Affirmed.