Opinion
No. 29434.
May 4, 1931.
1. RAILROADS.
Railroad owes travelers using grade crossing duty of exercising ordinary care to prevent injury.
2. RAILROADS. In absence of statute, railroad is generally under no duty to station servant at crossing to warn travelers of approach of train.
Foregoing rule, however, is subject to exception that, where crossing is, or the evidence justifies the jury in finding that it is, more than ordinarily hazardous, railroad is under duty to station servant at such crossing to warn travelers.
3. RAILROADS. Absence of flagman at grade crossing of railroad held not negligence under evidence.
Evidence showed that ordinarily travelers using grade crossing in question incurred little, if any, danger, provided they used due care in crossing, and that the increased hazard, if any, at time of collision, grew out of fact that freight train was then temporarily on side track.
APPEAL from circuit court of Forrest county; HON.W.J. PACK, Judge.
Paul B. Johnson, J.R. Tally, and Stevens Heidelberg, all of Hattiesburg, for appellant.
It was error for the court to give to the jury, at the request of the plaintiff, an instruction on the prima facie statute.
Wickton v. Louisville N.R. Company, 45 F.2d 615; Western Atlantic R. Company v. Henderson, 279 U.S. 639, 49 Sup. Ct. 445, 73 L.Ed. 884.
The duty does not rest upon a railroad company to maintain a watchman or flagman at any crossing, much less such a little used, country crossing as the one involved in this case.
Houghkirk v. President, 92 N.Y. 219, 44 Am. Rep. 370; Weber v. New York C. H. Railroad Co., 58 N.Y. 451; Terre Haute, I. E. Traction Co. v. Phillips, 191 Ind. 374, 132 N.E. 740; Chicago I. L.R. Co. v. Blankenship, 85 Ind. A. 332, 154 N.E. 44.
The doctrine with reference to injuries to those crossing the track of a railway, where the right to cross exists, is that the company must use such reasonable care and precaution as ordinary prudence would indicate. This vigilance and care must be greater at crossings in a populous town or city than at ordinary crossings in the country; so what is reasonable care and prudence must depend on the facts of each case. In a crossing within a city, or where the travel is great, reasonable care would require a flagman constantly at the crossing, or gates or bars, so as to prevent injury; but such care would not be required at a crossing in the country, where but few persons passed each day.
Grand Trunk R.R. Co. v. Ives, 36 L.Ed. 485. Currie Currie, of Hattiesburg, for appellees.
Under the well settled rule of law and under the well settled rule of practice and procedures in this state, the only objection to the prima facie instruction which can be considered by this court on this appeal is the question whether our prima facie statute violates the due process clause of the Fourteenth Amendment to the Constitution of the United States of America and is void.
Barney v. Scherling, 40 Miss. 320; Armstrong v. Whitehead, 81 Miss. 35, 32 So. 917; Rickburger v. State, 90 Miss. 806, 44 So. 772; Carpenter v. Savage, 93 Miss. 233, 46 So. 537; Borrour v. State, 94 Miss. 88, 40 So. 480.
It is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.
A railroad is chargeable with notice of parked freight cars on passing track near public crossing, in violation of one of its rules made for safety of traveling public, and that cars so situated will obscure view of engineer and fireman as to person entering on such crossing.
Illinois Central R.R. Co. et al. v. Williams, 110 So. 510.
Use of a public highway for passage at a railroad crossing or elsewhere is the right of all travelers in common, within the law requiring all users to exercise reasonable care with reference to a like use by others, so that, while the tracks are a warning to the traveler of railway movements, the highway crossing is likewise notice to the train operators that travelers are to be expected on the highway; care being exacted from them commensurate with the recognizable conditions.
Southern Railroad Co. v. Fisk, 159 Fed. 373.
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 traveling 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.
2 White Personal Injuries on Railroads, page 1297, par. 877; Chicago, etc., R. Co. v. Perkins, 125 Ill. 127, 17 N.E. 1; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 36 L.Ed. page 485.
Whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous is a question of fact for a jury to determine, under all the circumstances of the case; the omission to station a flagman at a more than ordinarily dangerous crossing may be taken into account as evidence of negligence.
Grand Trunk R.R. Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485.
The appellee was injured in a collision of an automobile in which she was riding, with one of the appellant's trains, at a grade crossing; and this is an action by her for the recovery of damages for injuries alleged to have been sustained thereby. The declaration contains several counts. The first alleges that no bell was rung or whistle blown as the train approached the crossing; the second that the appellant was negligent in not stationing a flagman at the crossing to warn travelers on the road of the approach of trains; the third alleges that the train approached the crossing at a negligently high rate of speed; and the fourth alleges, in substance, merely that the appellee was struck and injured by one of the appellant's trains while it was being negligently operated by its servants.
The appellant's railroad crosses a public, but infrequently traveled, road just north of a flag station at which there is a side track for the use of trains passing each other at this point. The railroad runs practically north and south, and for a short distance south of the crossing is paralleled by a public road. On the occasion in question a freight train, traveling south, entered the side track, and stopped thereon, blocking the crossing for a period of approximately twenty minutes. The automobile in which the appellee was riding was traveling north on the public road, in which direction the train which struck it was also going. Just before the automobile reached the crossing, the freight train moved south far enough to clear the crossing, and, when the automobile reached the main tracks, it struck, or was struck by, the north-bound train.
According to the appellee's evidence, the train with which the automobile collided approached the crossing at a speed of twenty-five or thirty miles an hour without signal by bell or whistle, and no flagman was stationed at the crossing to warn travelers of the approach of trains. In the absence of a train on the side track, travelers on the road, approaching the crossing, had a clear view of the main track both north and south; but the view south of the crossing was obstructed on the occasion in question by the freight train that was then on the side track.
The appellee was not driving the automobile herself, and the disposition to be made of the case does not require any statement of the evidence relative to the care, vel non, of the driver of the automobile in approaching the crossing.
The court below granted the appellee an instruction substantially in the language of section 1580, known as the prima-facie evidence statute, and another charging the jury, in substance, to find for the appellee in event the evidence discloses that it was reasonably necessary for a servant of the appellant to be stationed at the crossing to warn persons traveling on the public road of the approach of the appellant's trains, and that the appellant's failure to station a servant at the crossing for that purpose contributed to the appellee's injury.
The appellant requested, but was refused, an instruction charging the jury to find for it on the second ground of the declaration.
The prima facie evidence instruction should not have been given; New Orleans G.N.R. Co. v. Walden (Miss.), 133 So. 241. The appellant objected to this instruction in the court below in its motion for a new trial, for the specific reason that section 1580, Code of 1930, violates the due process clause of the Fourteenth Amendment to the Federal Constitution; and one of the appellee's contentions is that the appellant must be confined to that objection in this court, and that, as there is no merit therein, the granting of the instruction cannot be held to be error. It will not be necessary for us to decide that question, for the reason that the judgment of the court below must be reversed on another ground.
A railroad company owes travelers on roads crossing its tracks at grade the duty of exercising ordinary care to prevent their being injured by its trains; but, in the absence of a statute so providing, it is under no duty to station a servant at such crossing to warn travelers on the road of the approach of trains to the crossing, 52 C.J. 202; Houghkirk v. President, etc., Delaware, etc., Co., 92 N.Y. 219, 44 Am. Rep. 370; Terre Haute, I. E. Traction Co. v. Phillips, 191 Ind. 374, 132 N.E. 740; Chicago, I. L. Co. v. Blankenship, 85 Ind. App. 332, 154 N.E. 44, unless the crossing is, or the evidence justifies the jury in finding that it is, more than ordinarily hazardous, 52 C.J. 204; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485.
Ordinarily travelers on this road incurred little if any danger in crossing the railroad at this intersection, provided they used due care in so doing, and the increased hazard here attached thereto, if such there was, grew out of the fact that a freight train was then temporarily on the side track. This increased hazard may have necessitated greater care on the part of the appellant's servants in charge of the north-bound train in approaching the crossing than would have been necessary had a flagman been stationed at the crossing to warn travelers on the road of the approach of the train; but the absence of such a flagman does not, of itself, constitute a ground of negligence. The instruction requested by the appellant, charging the jury to find for it on the second count, should have been given, and the instruction permitting the jury to find that the appellant was negligent in not stationing a flagman at the crossing should have been refused.
It will not be necessary for us to pass on the other assignments of error.
Reversed and remanded.