Opinion
No. 33161.
September 26, 1938.
1. APPEAL AND ERROR.
The material facts which the evidence tends to substantially establish favorable to plaintiff's position should be taken as true on appeal in considering whether it was error to refuse defendant's request for a directed verdict.
2. RAILROADS.
In action by automobile guest against trustee for railroad company for injuries sustained at railroad crossing which was being repaired, where barricade erected during progress of the work had been knocked down three or four times during the three days preceding the day of the accident and was down at time of accident, whether the trustee had used reasonable care to guard the traveling public against attempting the crossing was for the jury.
APPEAL from the circuit court of Lauderdale county; HON. A.G. BUSBY, Judge.
J.H. Currie and J.C. Floyd, both of Meridian, for appellant.
As we understand the law, the railroad company was not an insurer of the safety of all parties using B Street, nor was the city. The measure of duty required of the railroad company was the same measure of duty required of the city, and, as we understand the law, that duty is to exercise ordinary care at the time these repairs were being made to see that B Street was kept in a reasonably safe condition for use by persons exercising ordinary care and prudence in passing over it. The degree of care required is ordinary care and diligence. Absolute safety of condition is not required and, as we understand it, this is and has been the rule for years in Mississippi.
Thomas v. City of Lexington, 150 So. 817; Dow v. Town of D'Lo, 152 So. 474.
If, therefore, the railroad company used ordinary care to see that traffic was kept off of B Street between Eighteenth and Twenty-first Avenues while its crossing traversing this street was being repaired, then, as we understand the rule, there could be no liability on the railroad company to this plaintiff.
Thomas v. Lexington, 150 So. 817.
There is no dispute in this record as to the character of the barricade. The testimony of each of the witnesses sets out the character of the barricade; that it extended across the street; the kind of timbers composing it; that it was in sections, the timbers setting on horses, and that the lanterns were on the plank composing the barricades, which planks were about three feet high, extending all the way across the street; that the lanterns were lit with red globes, throwing out a red light, and that this was the condition at 21st Avenue at 7:00 o'clock the night of May 3, 1936, when the accident ocurred.
There is no dispute as to the facts about the barricades and there was, therefore, nothing for the jury to pass upon as far as the legal sufficiency of the barricade was concerned.
As we understand the law, it is also true that where there is a defective condition in a street, there must be actual or constructive notice before the person to be charged with liability as a result of an accident accruing from such defective condition can be held liable therefor.
Butler v. Town of Oxford, 13 So. 626.
The railroad company was certainly entitled to notice as to the barricade being down before it could be held liable and was also entitled to a reasonable time in which to restore the barricade.
Under the facts in this record, we most respectfully submit that the defendant was entitled to and should have been granted a peremptory instruction, and that under the facts the plaintiff could not and should not recover; that the judgment of the lower court should be reversed and a judgment entered here for the appellant.
Reily Parker, of Meridian, for appellee.
It will be seen that from the beginning of the work to the time that the plaintiff was injured, neither the city nor the defendant was accepting responsibility for the safety of this excavation, and that the only defense suggested by the railroad for its failure in this regard is its asserted reliance upon the city to do any and everything necessary in this regard, which the city asserts was not justified and the jury found was not warranted. On this testimony, we assert that the verdict of the jury against the defendant was justified, no other verdict would have been justified, even if it be conceded that the barricades furnished were in every way adequate and sufficient, and the only negligence of which the defendant was guilty, was in not properly replacing the barricades after they were knocked down. But, in addition to the above, we contend that the testimony warranted the jury in finding that the defendant was guilty of negligence in not providing adequate or sufficient barricades to protect the public from this danger.
Wilkinson v. City of Jackson, 170 So. 901.
As a general rule, the question as to whether or not signals or warnings against existing defects in a street are sufficient is one for the determination of the jury. Such is the case where the evidence is conflicting, or is such that reasonable minds might arrive at a different conclusion.
Thomas v. City of Lexington, 150 So. 816; Graves v. Johnson, 176 So. 256; Scharder v. Ky.-Tenn. Light Power Co., 8 S.W.2d 495; Cox v. Nova Scotia Tel. Co., 35 N.S. 148.
Without considering the negligence of the defendant in not replacing the barricades after they were torn down, we feel that the testimony was adequate to justify the jury in finding the defendant liable in this case for failing to provide a sufficient barricade. And without considering the negligence incident to the insufficiency of the barricades, the jury was justified in finding the defendant liable for negligently failing to replace the barricades after they were knocked down. And these two elements of negligence were constantly consistent with the attitude of the defendant in this case, wherein this dangerous excavation placed across a public street by the defendant was being ignored without any pretense of exercising any care for the public safety, if the testimony of the city officials is to be delivered.
Argued orally by J.H. Currie, for appellant, and by Marion W. Reily, for appellee.
The appellee brought this action in the Circuit Court of Lauderdale County against appellant, a railroad company being managed by a trustee, to recover damages for a personal injury received by her in attempting to cross in an automobile appellant's railroad track on B street, in the city of Meridian, which crossing was in such an unsafe condition that it was impassable, the ground of negligence alleged being that appellant had failed to properly guard the traveling public against such danger. The only question in the case is whether it was error to refuse appellant's request for a directed verdict. In considering that question, all the material facts which the evidence tends to substantially establish favorable to appellee's position should be taken as true. So viewing the record, here is the case:
B Street in the city of Meridian is Highway 45 and is one of the main streets of the city. It runs east and west, and there is much travel on it both day and night, mostly, of course, by motor vehicles. Appellant's railroad track crosses B Street not at right angles, but at triangles at a point between 18th and 21st Avenues. The avenues in the city run north and south, and are numbered numerically from east to west. Appellant was engaged in repairing its track at the crossing. The old track was being dug out, the ties were being renewed, and other work necessary to restore the track so as to fit in with the street paving. The result of the work was that the crossing was impassable. It was dangerous to the lives and limbs of persons undertaking to cross it in motor vehicles. The crossing had been in this condition since the first of May, 1936. The injury to appellee took place on the next Sunday, the third of that month, about seven-thirty o'clock in the evening. She was a guest with others in an automobile being driven by Curtis Miller, a nephew of her husband. They were going east on B Street. There was no warning or barricade at or near the crossing. In passing over the railroad track, the car was wrecked and the appellee was injured as a result thereof.
Appellant had erected and had undertaken to maintain warnings and barricades at both of the approaches to the track on B Street. According to the testimony of the witness, Wilkinson, an employee of the city of Meridian, whose duty it was to look after its streets at night, B Street was barricaded and had warning lights on it between 18th and 21st Avenues. The barricades consisted of wooden horses, about waist high, with one by ten inch planks, about twelve feet in length, laid thereon from one to the other. On each barricade, there were two red light lanterns, one on each end. The approaches on the crossing had been guarded in that manner since the repair work had begun on Friday before the injury on Sunday evening.
The witness, Rogers, who worked nearby, testified that during those three days — Friday, Saturday, and Sunday — the barricades had been knocked down three or four times by the traveling public and replaced by appellant. The blocks in that section of the city are something like three hundred feet frontage.
The barricade and lanterns east of the crossing were located a short distance west of the point where 18th Avenue enters B Street, and the barricade and lanterns west of the crossing were located a short distance east of where 21st Avenue enters B Street. In both directions, therefore, the barricade and lanterns were a considerable distance from the crossing. There was no light on or near the crossing.
The witness, Buchanan, undertook to make the crossing in his car about a half an hour before appellee's party undertook to cross. His car was wrecked — a tire blown out, and a spring broken. There were no barricades or lights on the approaches when he attempted to cross. Some traveler preceding him had knocked them down.
Something like an hour before the appellee was injured, Crews, the superintendent of the appellant, was notified that the barricades and lights were down. The evidence on behalf of appellant tended to show that they were replaced within an hour or an hour and a half.
Leaving out of view the question whether appellant used reasonable care to replace the barricades and lights, we think the question whether appellant used reasonable care to guard the traveling public against attempting the crossing was one for the jury, and we reach that conclusion from the following considerations:
The method adopted by appellant was a failure and appellant knew it. It was fully aware that it would not answer its purpose. Three or four warnings in three days were enough to induce appellant to try some other means. A red lantern on or in close proximity to the crossing in addition might have answered the purpose. Or a person with a red light standing guard at the crossing and waving the traveling public away might have accomplished the purpose still better. It was for the jury to say whether appellant, in the exercise of reasonable care, should have adopted some other method in the place of the one tried which was a manifest failure.
Affirmed.