Opinion
No. 33745.
June 5, 1939.
1. APPEAL AND ERROR. Trial.
In action against railroad for death of truck passenger killed in crossing collision, instruction that jury should find for railroad if they believed that truck driver saw, or by exercising ordinary care could have seen or heard, approaching train in time to have stopped truck and avoided accident, was erroneous, and required reversal, for failure to charge that driver's negligence must have been the sole cause of death.
2. RAILROADS.
All persons are charged with knowledge of the law requiring stop signs to be placed at railroad crossings but not necessarily with knowledge of the meaning of signs not required by law unless they are familiar with locations of crossings.
3. RAILROADS.
In action against railroad for death of truck passenger killed in crossing collision, instruction that jury should find for railroad regardless of Mississippi Law Stop sign if truck driver knew or should have known that he was approaching a railroad crossing from other signs and negligently proceeded across tracks and if his negligence was the sole contributing proximate cause of injury was erroneous, since, the Legislature having prescribed a particular sign, that sign should be placed at a crossing, even though old sign formerly required may not have been removed.
4. RAILROADS.
In action against railroad for death of truck passenger killed in crossing collision, instruction that there could be no recovery against railroad because of alleged failure to equip locomotive with bell and whistle as required by law was erroneous where a principal issue was whether bell had been rung continuously for 900 feet before reaching crossing, evidence failed to disclose whether bell was the kind required by statute, and declaration was silent in the matter (Code 1930, sec. 6125).
5. EVIDENCE.
In action against railroad for death of truck passenger killed in crossing collision, witness who testified for plaintiffs that bell was not rung and whistle was not blown 900 feet before train reached crossing should have been permitted to testify whether, if signals had been given, he would have heard them, over objection that answer would be a mere opinion (Code 1930, sec. 6125).
APPEAL from the circuit court of Leflore county; HON. S.F. DAVIS, Judge.
O.L. Kimbrough, of Greenwood, for appellants.
Taking into consideration the testimony of the witnesses and the photographs and blue print, there can be no doubt that the railroad crossing at McCarley, when approached from the south, is an exceedingly dangerous one.
Columbus Greenville Ry. Co. v. Buford, 116 So. 817, 150 Miss. 832, 122 So. 501.
Mortimer testified that he did not hear the bell ringing. He was asked on direct examination if the bell had been rung could he have heard it. Appellee's objection to that question was sustained by the court below.
We submit that it was competent for Mortimer to testify as to whether or not he could have heard the bell if it had been ringing, or the whistle if it had been blowing. There was direct testimony on the part of appellants that the bell was not rung. There was direct testimony on the part of appellee that the bell was ringing.
Albert v. Doullut Ewin, 180 Miss. 676, 178 So. 312.
The first case under the prima facie statute to reach this court, we believe, was that of Vicksburg Meridian Railroad Co. v. Phillips, 64 Miss. 693, which was decided by this court in 1887. In that case, as this court knows, Judge CAMPBELL, in effect, said that an instruction in behalf of the plaintiff is never improper, although the presumption of negligence must yield to the facts. The writer was of counsel in Columbus Greenville Railway Co. v. Buford, 122 So. 501. That case was decided by this court on May 27, 1929, from which an appeal was prosecuted to the Supreme Court of the United States. By way of a supplemental assignment of errors in the Buford case, the constitutionality of the prima facie statute was raised, it being claimed that the same was in violation of the 14th amendment to the Constitution of the United States.
On the same day that the Buford case was affirmed by this court, to-wit, May 27, 1929, the case of Western Atlantic R.R. v. Henderson, 73 L.Ed. 884, was decided by the Supreme Court of the United States. In the Henderson case the Supreme Court distinguished between the Georgia statute and the Mississippi statute, referring to M.J. K.C.R.R. v. Turnipseed, 219 U.S. 35, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226, 31 Sup. Ct. Rep. 136, Ann. Cas. 1912A, 463, 2 N.C.C.A. 243, with approval. That court in the Henderson case also referred with approval to Gulf M. N.R. Company v. Brown, 138 Miss. 39, 66, et seq., 102 So. 855; Columbus Greenville Railway Company v. Fondren, 145 Miss. 679, 110 So. 365.
On the appeal of the Buford case counsel for appellant, as shown by the record, pressed with great vigor the Henderson case, supra, as authority for reversal of the Buford case. The Supreme Court of the United States dismissed the appeal in the Buford case on March 17, 1930, for the reason, as the writer of this brief understands it, that the question presented had been fully foreclosed. 74 L.Ed. 1123.
Thereafter, on March 23, 1931, to the dismay of this writer, in view of the action of the Supreme Court of the United States in the Buford case, this court decided the case of New Orleans G.N.R.R. Co. v. Walden, 160 Miss. 102, 133 So. 241, in which Alabama Vicksburg R.R. v. Thornhill, 106 Miss. 387, 63 So. 674, is pretty well emasculated, the court expressly overruling rules five and six therein set forth.
Being so uncertain as to the propriety of asking for or of obtaining an instruction on the prima facie statute, counsel for appellants sought none in the case at bar. We now contend that if appellants were entitled to no instruction under the prima facie statute, likewise, appellee was entitled to none. If correct in this, then the court below erred in granting appellee its instruction number nine.
That instruction, we submit, is erroneous in the first place for the reason just stated, that if no instruction under the facts in the case is permissible for the plaintiff, then none is permissible for the defendant. The statute manifestly was not enacted for the benefit of defendants, railroad companies, but rather for those injured by running trains. If a plaintiff is to be precluded from obtaining an instruction, announcing the presumption of negligence then, obviously, a defendant cannot affirmatively benefit by a statute which was not enacted for its benefit but rather as a protection against it.
New Orleans G.N.R.R. v. Walden, 160 Miss. 102, 133 So. 241.
In addition to the foregoing objection to appellee's instruction number nine, said instruction is fatally defective in other respects. In the first place, it assumes that the truck driver "failed" to stop his car when he could have stopped it in time to avert the accident. Such, we submit, is not the law.
In the second place, it is not the law that the driver of the truck was guilty of negligence merely because he could have seen the approaching train. The question is could, or should, he have seen it by the exercise of reasonable care? The instruction casts, in this regard, too great a burden on the driver.
In the third place, the instruction assumes that the driver failed to stop his car after he could have seen the train.
In the fourth place, the instruction leaves completely out of consideration the duty of the railroad company as to the stop sign required under section 6123 of the Code. Said instruction is in conflict with other instructions given appellants and appellee.
As to appellee's instruction No. IV, it will be manifest from even a casual reading of this instruction that it peremptorily directs the jury to return a verdict for appellee irrespective of all other facts provided the jury believe that the locomotive bell was ringing continuously for a distance of three hundred yards from the crossing and as it passed over the crossing. It cannot be contended that this instruction, number four, is cured by other instructions or that it must be taken in connection with other instructions or that it is not in conflict with all the other instructions or that it does not reduce the case to a single point, viz., the question of whether or not the bell was ringing.
C. G. Ry. v. Buford, 122 So. 501.
As to appellee's Instruction No. V, there is nothing in the record to show that the driver of the truck, Harrison, or that either of the other occupants, Miss Sanders and Miss Heafner, had ever been through McCarley before the day of this occurrence. Of course, no driver of a motor vehicle would be required to exercise great care and caution in approaching a dangerous crossing unless he knew of the crossing, was familiar with it and knew the danger, or had some warning or notice of its existence. The instruction under consideration would be good, would be proper, in a case where the evidence disclosed that the driver was familiar with the conditions existing and surrounding a particular crossing but unless and until such knowledge on the part of the driver has been shown, the instruction is improper.
This instruction, by implication at least, casts upon the driver the duty of looking beyond the highway — rubber necking — which he not only is not required to do but which he in ordinary care should not do. Finally, it gives undue emphasis to appellee's instruction number six. As a matter of fact, and as a matter of law, if the driver of the truck had no knowledge of the crossing, and if there was no sufficient warning or sign to put him on notice of its existence, he was under no duty to exercise any care in respect to it.
As to appellee's Instruction No. VII, this instruction is erroneous for the reason that it leaves wholly out of consideration all question of negligence on the part of this appellee.
As to appellee's instruction No. VIII, this instruction is grossly improper. While it expressly declares that the law does not require the erection by appellee of a cross-board warning, it virtually informs the jury that if appellee has done so it is thereby relieved from the requirement of the law to erect and maintain, as required by law, the "Mississippi Law Stop Sign." We do not contend that the driver of a car should ignore a cross-board sign or any other sign, notice or warning of a railroad track. But we do contend that appellee cannot substitute such sign for the one specifically required by the statute, section 6123.
As to appellee's Instruction No. 11, this instruction could accomplish no good, could be of no possible assistance to the jury. It is not "alleged" in appellants' declaration that appellee failed to equip its locomotive with such a bell and whistle as the law requires. There was no effort to prove that the locomotive was not so equipped.
Denman Everett, of Greenwood, for appellee.
The first ruling of the court assigned as error was the refusal to admit testimony of Frank Mortimer in answer to the question "If the bell had been ringing, could you have heard it from that distance?" The assignment of error cannot be seriously considered because the very testimony which the appellants were seeking to bring out was admitted without objection.
As to appellee's Instruction No. 4, throughout appellants' case the record shows that the chief ground of negligence relied upon by them was the alleged failure of the railway company to blow the whistle and ring the bell for a distance of three hundred yards as it approached said crossing. Every witness was interrogated in detail on this point and as usual it was the paramount issue in the case. This instruction informs the jury that it is not necessary for both the whistle and the bell to be sounded continuously but even if the bell was sounded continuously and the whistle not, then the railroad has complied with the statutory requirements in this regard.
The jury had been thoroughly and clearly instructed as to the other duties of the railroad company in maintaining the sign boards and the operation of the train and they are in no wise authorized by this instruction to disregard other instructions on other phases of the case but must construe them altogether when possible.
As to appellee's Instruction No. 7, all of the duty required at a railroad crossing does not rest upon the railroad company and if the sole cause of this accident was the negligence of the driver in not exercising due care and caution under the circumstances, the railroad company having no casual connection with the injury cannot be held to be liable.
Thompson v. Miss. Central R.R. Co., 175 Miss. 547.
As to appellee's Instruction No. 8, there is testimony that the "Mississippi Law Stop" sign could be read for a distance of one hundred sixty yards south of the crossing and that at the same distance the cross sign could also be seen.
This instruction simply says that if the driver of the truck from the cross board warning or any other signs as said crossing should have known that he was approaching the railroad crossing and gave no heed to said warning and proceeded to cross said track and was negligent and such negligence was the sole, contributing, proximate cause of the injury, then the jury should find for the defendant.
Under such circumstances it cannot be said that a few inches off of a sign or its having been placed in a more advantageous position was the proximate cause of this injury when other signs were located at said crossing and placed there by the railroad company to warn travelers and every precaution was taken to give notice that a railroad crossing was there, and in accident when the train was whistling and the bell ringing as it came down the track approaching the crossing.
As to appellee's Instruction No. 9, it is well known to both lawyers and laymen that the statutory law of Mississippi provides that the unexplained happening of an accident at a railroad crossing raises a presumption of negligence on the part of the railroad company. Even among lawyers this section has created much confusion and counsel for appellants admits his difficulty in understanding and properly interpreting the statute. It, therefore, clarifies the situation and removes all possible confusion, however, vague, as to whether or not any presumption exists.
If the appellants had been entitled to an instruction on the presumption of negligence, then the appellee would certainly not have been entitled to this instruction, but the very fact that the appellants were not entitled to such an instruction shows it was proper for the appellee to request the instruction which was given. If appellants' reasoning is correct, then railroads would never be entitled to an instruction similar to the one granted because in cases where it would be proper, the plaintiff would not be entitled to any instruction on the presumption, and, therefore, the railroad could not have any instruction on the statutory presumption. The instruction assumes nothing but simply states that if the jury believes certain matters from the evidence, then the defendant would not be liable.
The testimony clearly shows that a substantial compliance with the statute on signs has been had and that said sign could be seen one hundred sixty yards south of the crossing and we think that this is sufficient compliance with the statute, especially when the sign, if situated exactly fifty feet from the crossing would be out in the road.
C. G. Ry. Co. v. Lee, 149 Miss. 571; G. S.I.R.R. Co. v Atkinson, 117 Miss. 131; 86 Miss. 464; 87 Miss. 789; 95 Miss. 50; 96 Miss. 314.
Argued orally by O.L. Kimbrough, for appellants, and by Richard Denman for appellee.
The appellants, plaintiffs in the court below, brought suit for the wrongful death of Annie Maude Heafner, about sixteen years of age, killed when the truck in which she was riding with another lady, Miss Sanders, and driven by a man named Harrison, collided on February 22, 1934, with a train on the Columbus Greenville Railroad at a crossing in the village of McCarley. At the time of the collision Harrison, Miss Heafner and Miss Sanders were returning to Greenwood, Mississippi, from Winona, Mississippi. Both young ladies were employed by Harrison as helpers in distributing samples of a baking powder called Clabber Girl Baking Powder, manufactured by Hulman Company, Inc., of Terre Haute, Indiana, at the homes of persons in the territory where they were operating, the truck being used in connection with the business of Hulman Company, Inc. On the date in question they had been to Winona for this purpose, and returning to Greenwood, were struck by the train while crossing the tracks at McCarley, as stated. At that point the railroad runs approximately east and west, while the highway runs north and south at that particular point, although its general direction is east and west.
There was a dispute in the evidence as to whether or not the train had given the signals required by statute in approaching a highway crossing, by blowing the whistle or ringing the bell continuously for 900 feet prior to reaching the crossing, and until the engine had passed the crossing. The driver of the truck, Harrison, was not produced as a witness in the case, but Miss Sanders, who was riding in the truck, testified that as they approached the scene of the accident she heard neither the ringing of the bell nor the blowing of the whistle of the train, although her hearing is normal. A number of people in McCarley saw the accident, and testified in regard thereto, a number testifying that the bell was not ringing and the whistle was not blowing — that the whistle only blew at the mile board, about a mile away, and two short blasts were blown about the moment of the collision, in answer to a signal from a mail service man, who had carried the mail from the post office at McCarley to the depot, to be taken up by the train.
The testimony of the crew operating the train was to the effect that the signals were all given, that the whistle had blown for the crossing, and that the bell had been rung continuously for more than 900 feet before reaching the crossing, and was ringing at the time of the accident. Some other witnesses testified to the same effect. In other words, the testimony was conflicting as to whether or not the bell was rung and the whistle blown, as required by the statute. Code 1930, section 6125.
It was also shown that the "Mississippi Law Stop" sign was placed about 24 feet from the railroad track, instead of 50 feet; that the lettering on the sign was dim and difficult to read; and there is a dispute as to whether the lettering on the sign could be deciphered at a sufficient distance to serve as a warning. Miss Sanders testified that she did not see the train until they were within a few feet of it, and heard no signals; that at about the moment she saw the train Harrison put his brakes on and turned the truck to the left, but not in time to avoid a collision.
Suit was filed against both the Columbus Greenville Railroad Company and the Hulman Company, Inc.; a settlement being reached between Hulman Company, Inc., and the plaintiffs prior to trial of the case, non-suit was taken as to that company, and the trial proceeded against the Columbus Greenville Railroad Company alone, the instruments evidencing the settlement with Hulman Company, Inc., being introduced in connection therewith.
There was a difference between the statements made by some of the witnesss for the plaintiffs prior to the trial, and their testimony given on the trial, tending to show that they were not positive as to the absence of signals. Among these contradictory statements is that of the lady who was riding in the truck at the time of the collision, who was then Miss Sanders, but who later married, and at the time of the trial was Mrs. G.B. Leimgruebler.
On the examination of witnesses, Mr. Frank Mortimer, who was near the crossing when the collision occurred, testified for the plaintiff that the bell was not rung nor the whistle blown 900 feet before the train reached the crossing, and that the whistle was only blown, as above stated, in answer to the signal from the mail carrier; on cross-examination by attorneys for the defendant, as to statements theretofore made, with a view to showing uncertainty on his part in that regard, there was at least an indication that he had not been positive about it prior to the giving of his testimony. After considerable examination, he was asked whether, if the signals had been given, under the circumstances testified about he would have heard them. This was objected to, which objection was overruled on the ground that it was a mere opinion.
A number of the instructions given defendant were complained of, of which we shall notice only the following: Instruction No. 7 reads as follows: "The Court instructs the jury for the defendant that, if they believe from the evidence that the truck driver saw, or by the exercise of ordinary care and caution could have been or heard the approaching train which struck his automobile, in time to have stopped his car and avoided the accident, then the jury will find for the defendant." This instruction is fatally erroneous. The plaintiffs were entitled to recover from the railroad company if it was negligent in regard to the signals when approaching the crossing, although the facts embodied in this instruction might be true. They were entitled to recover against both the railroad company and the Hulman Company, Inc., if both were negligent; and the negligence of the driver of the Hulman Company, Inc., truck was not a bar to recovery against the railroad company in the event that it, too, had been negligent. The instruction omitted one qualification necessary to be embraced in it, that such negligence by the driver of the truck was the sole cause of the death or injury of the decedent. For this error the judgment of the court below must be reversed.
The court also gave instruction No. 8, which provides: "The Court instructs the jury for the defendant that the statute law of Mississippi does not require the defendant to erect in plain view the cross board railroad sign warning travelers on the highway of the railroad crossing, and if you believe from the evidence that such cross board warning sign was there in full view of the truck driver, that regardless of the Mississippi Law Stop sign the driver of the truck knew or should have known that he was approaching a railroad crossing from other railroad signs at said crossing, and gave no heed to the said warnings but proceeded across said tracks and was negligent in so doing and such negligence was the sole contributing proximate cause of the injury to plaintiff's decedent, then you shall find for the defendant Railway Company." This instruction should not have been given, because the Legislature, having prescribed a particular sign to warn travelers of a railroad crossing, even though the old sign formerly required may not have been removed, the sign required by law should be placed in accordance with the statute; these being the signs required to warn travelers approaching the crossing. All persons are charged with knowledge of the law, but not necessarily with knowledge of the meaning of signs not required to be made by law, unless they were familiar with the location of the crossing. The driver, Mr. Harrison, was not shown to have been a resident of Mississippi, nor was he shown to have been familiar with signs formerly erected by the railroad company. However, this alone would not reverse the case — but the instruction should not be given on a new trial.
The defendant also was given an instruction reading: "The Court instructs the jury for the defendant that there can be no recovery against the defendant, Columbus Greenville Railway Company, on account of any alleged failure of the said defendant to equip its locomotive with such a bell and whistle as the law requires." Under the peculiar facts of this case, this instruction was calculated to confuse the jury, because one of the principle issues to be decided by it was whether or not the bell had been rung continuously for a distance of 900 feet before reaching the crossing and until the locomotive passed it. The evidence failed to disclose whether or not the bell on the train was such as the statute required, and the declaration was silent in the matter. However, we do not reverse for this error alone.
We are also of the opinion that the court should have permitted the witness, Mortimer, to answer the question as to whether or not he would have heard the bell, had it been ringing. This is not a mere matter of opinion, for the reason that the sense of hearing varies in different individuals. Whereas, the sound of the ringing bell might be sufficient to carry for the distance required by the statute, some persons might not be able to hear it. Every person knows, and is the best judge of, his capacity to hear; and it is competent for the plaintiff to develop the fact that he would have heard it, had it been ringing. This is different from a mere opinion as to what would or would not be done under certain circumstances. Had it been shown that his capacity for hearing was normal, or that of the ordinary person, then it might be that the jury should have been left to decide in that regard. However, this question and answer are admissible under the circumstances existing in this case.
In Albert v. Doullut Ewin, Inc., et al., 180 Miss. 626, 178 So. 312, 313, it is said: "There was direct evidence on behalf of appellees that a warning was given, while on behalf of appellant several witnesses testified that they were from 20 to 100 feet of where the tree was being felled and if any warning was given by the sawyers they did not hear it, and if it had been given they would have heard it. Appellees contend that this evidence was negative and for that reason not sufficient to make an issue for the jury, as against the positive testimony that the warning was given. Testimony that a fact did not occur, given by witnesses so situated that in the ordinary course of events they would have heard or seen the fact had it occurred, is sufficient to warrant a jury in finding that the fact did not occur. 1 Wigmore on Evidence (2 Ed.), sec. 664; 23 C.J. 40; Yazoo M.V.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; Gulf S.I.R. Co. v. Carlson, 137 Miss. 613, 102 So. 168; Grantham v. Gulf S.I.R. Co., 138 Miss. 360, 103 So. 131; Gulf M. N.R. Co. v. Hudson, 142 Miss. 542, 107 So. 369; Columbus G.R. Co. v. Lee, 149 Miss. 543, 115 So. 782. We are of the opinion that it was an issue for the jury as to whether or not the warning was given."
Since other errors complained of may not occur on another trial, we shall not comment thereon. For the errors indicated the judgment must be reversed and the cause remanded for a new trial.
Reversed and remanded.