Summary
In Illinois Central Railroad Company v. McNeil, 205 Miss. 807, 39 So.2d 490, the record showed that the plaintiff's automobile which was being driven by his minor son collided with a locomotive standing upon the main street crossing in the City of Forest.
Summary of this case from Green v. G.M. O. Railroad Co.Opinion
March 28, 1949.
1. Railroads — crossing occupied by locomotive or cars.
In the absence of some peculiar environment, a railroad company is not guilty of negligence when it occupies a public crossing for its legitimate business purposes, and while so doing it is not required to light its cars or station a man with a lantern to give warning of the obstruction unless the conditions or circumstances are such that its employees knew, or in the exercise of reasonable care should have known, that a person driving on the public highway 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 obstruction in time to avoid a collision therewith.
2. Railroads — crossing occupied by locomotive or cars — no proof that occupancy was in pursuit of legitimate business purpose.
In the absence of a showing by the railroad company that it was in the pursuit of the purposes of its legitimate business that its locomotive, unlighted and unattended on a dark night, was occupying, and had for fifteen minutes occupied, a public crossing, the jury is justified in finding that the occupancy was not in pursuit of any legitimate business purpose and was negligent, proximity contributing to the injury and damage, in a case where there was a collision with the obstructing locomotive by an automobile, in good mechanical condition with good brakes and headlights and being driven about 15 miles per hour with a careful lookout.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Scott County; PERCY M. LEE, J.
May Byrd, for appellant.
We respectfully submit that the appellant was entitled to a peremptory instruction in this case based upon a long line of decisions of this court involving cases where automobiles ran into trains standing on public crossings.
One of the first cases is that of GM NRR Co. v. Holifield, 152 Miss. 674. In that case the court held that the railroad was entitled to a peremptory instruction where the testimony showed that the territory at and adjacent to the railroad tracks was low and dark and that when the accident occurred the night was pretty dark and the road or street dusty and that the driver was driving on the street at the rate of about fifteen miles per hour; that the lights and brakes on the automobile were in good condition and that the lights were burning. That the plaintiff was constantly keeping a lookout ahead, but on account of the absence of lights at the crossing and the consequent darkness, and on account of the dust, he was unable to see the box car across the street until he was within about eight feet and that he immediately applied the brakes and attempted to turn to one side, but was unable to prevent running into the box car. The plaintiff testified in that case that he had traveled this street often and was perfectly familiar with the street and surroundings and he knew the railroad tracks crossed the street at that point. The Holifield case is almost identical with the instant case, except that in the Holifield case a box car was occupying the crossing and in the instant case a locomotive was occupying the crossing.
Again in the case of GM N R. Co. v. Kennard, 164 Miss. 380, this court held that, in the absence of peculiar environment, railroad employees are justified in believing travelers in automobiles properly lighted and driven will observe cars on crossing at night in time to avoid collision, and cited to approve the case of GM N R Co. v. Holifield, supra. And again in the case of Spillman v. G. S.I.R.R. Co., 173 Miss. 725, this court again reiterated its holding in the Holifield case and defines the phrase "peculiar environment" as follows: "And, as explained in So. Ry. Co. v. Lambert, supra, and similar cases, the peculiar environment which is referred to means some peculiar condition of hazard which reasonable prudence should have reasonably foreseen would likely lead to a collision, notwithstanding ordinary care on the part of the driver of the motor car. But the conditions of peculiar hazard relied on here by appellant are no more persuasive than those urged in the Holifield case, wherein relief was denied."
Certainly in the instant case there was no peculiar environment which would place upon the railroad company any duty to give warning by signal, lights or otherwise. Here was an open street, with street lights burning within a few feet of this locomotive so that, as said in the Holifield case, the employees of the Company had a right to assume that a person driving an automobile and using reasonable care would see the locomotive on the crossing.
In the case of G.M. N.R. Co. v. Addkison, 189 Miss. 301, the court again cites to approve the Holifield case and the Spillman case, specifically declining to modify the opinions in those cases in any respect whatever.
One of the latest cases on this question is that of Mississippi Export R. Co. v. Summers, et al, 194 Miss. 179. In that case a truck driver lost his life when the truck which he was driving collided with a box car blocking a railroad crossing during a heavy fog. And in the Summers case the plaintiff relied for recovery upon the fact that the fog was so dense that a driver of an automobile, complying with the law in all respects, was unable to see more than a few feet ahead of him and notwithstanding the fact that the box car had been on the crossing more than five minutes (a violation of the law) its presence there was unguarded by lights or otherwise and that as a result thereof Summers ran into the box car without being able to see it in time to stop. The court said in the Summers case: "The authorities referred to simply mean that the railroad company had the right to assume that Summers was complying with the law. If he had been it is manifest that the collision could not have occurred. The only warning due him was the presence of the box car, which he could have seen in ample time to stop. The comparative negligence statute has no application because the negligence of Summers was the sole proximate cause of his death — so far as the railroad is concerned.
Reversed and judgment here for appellant."
Nichols Huff, for appellee.
Appellant relies upon the cases of Gulf, Mobile Northern Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750, and cases following that decision, to support its contention that this case should not have been submitted to the jury. These cases are not analogous to the case at bar, but they do declare some of the controlling considerations on which this case may be distinguished from the Holifield case.
The court held in the Holifield case that the proof failed to show negligence on the part of the appellant railroad company and that therefore the court below committed error in refusing to grant the peremptory instruction requested by the appellant. In arriving at this conclusion the court first found that a switch crew of the company had left a cut of freight cars standing on and across the street while they were picking up another car; that the street was graveled and was straight for some distance in both directions from the railroad tracks; that the automobile had good brakes and good lights — the court held, beginning at page 751 of the opinion referring to appellee's contention that the train crew was negligent in leaving these cars without stationing a man at the crossing to give warning that it was obstructed by the cars: "We are unable to give our assent to this contention of the appellee. 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, . . . ."
From this statement of the rule we find these principal considerations by which the court tests the facts in such cases in an effort to determine whether the railroad company has been guilty of any negligence. First, was the crossing blocked for legitimate business purposes and, next, even if it were blocked for legitimate purposes, were there conditions and circumstances which the employees of the railroad knew, or in the exercise of reasonable care and caution should have known might cause a collision with an automobile?
The decision of this court which states the rules applicable to the case at bar is that of Magers v. Okolona, Houston Calhoun City R. Co., 174 Miss. 525, 165 So. 416.
In the Magers case Allen Magers was instantly killed in the collision of a car driven by him against a gondola car loaded with gravel, standing on the railroad track, which gondola car, it is alleged was negligently and unlawfully placed upon a public highway or street and allowed to remain there blockading a considerable part of the traveled highway or street, variously stated, from 4 1/2 to 14 feet. Magers approached the crossing at above thirty miles per hour about nine o'clock at night prior to which time according to his companion he had been drinking what was believed to be whiskey. At the conclusion of the appellant's evidence the court excluded it and peremptorily instructed the jury to find for the defendant.
The court held: "Without regard to section 6128, it was negligence for the railroad company to allow its cars to remain located on the traveled portion of the public highway without reason therefor, and not necessary to its business of transportation. Vicksburg Meridian R. Co. v. Alexander, 62 Miss. 496; Terry v. New Orleans Great Northern R. Co., 103 Miss. 679, 60 So. 729, 44 L.R.A. (N.S.) 1069; 52 C.J., "Railroads", Sec. 1781."
After citing the Holifield case and supporting cases the court continues: "(6) In all of these cases the railroad companies had blocked the crossings in the ordinary, usual, and legitimate course of carrying on the business of transportation. In our judgment, none of these cases control the case at bar.
Appellant does not contend that a locomotive in such condition on such a crossing was a usual condition. The fact is that the conditions and circumstances under which the locomotive thus partially blocked the crossing were exceedingly unusual — it amounted to using a public street for a common parking place, parking in the middle of the street with all the lights turned off.
Appellee brought suit against appellant for the recovery of damages sustained when his automobile, driven by his minor son, collided with a locomotive engine standing upon the Main Street crossing in the City of Forest. The cause was submitted to the jury which found for appellee, and this appeal is prosecuted by the railroad company from the judgment entered thereon.
There is no dispute as to the facts in the case since the appellant offered no evidence. The proof shows that the railroad runs in an easterly and westerly direction, and that Main Street runs in a northerly and southerly direction and crosses the track a short distance west of the station at Forest. South of the track the terrain is lower than the track, as a consequence of which persons traveling to the north along the street are required to come up a little hill after which the street levels off for a very short distance before the crossing is reached. On the occasion in question appellee's automobile was being driven to the north of this street at a speed of about fifteen miles per hour and upon clearing the little hill the driver was confronted with a locomotive engine upon the crossing at a time when he was too close to stop; he thereupon swerved the car in an effort to drive along by the side of the track and avoid a collision, but he was unable to clear the engine. The automobile was in good mechanical condition, with good brakes and good headlights and the driver was keeping a careful lookout ahead, as was also a companion who was riding with him. The night was dark and there was a street light east of the crossing but its situation was such that it did not illuminate the engine. The station lights were burning, but they had a tendency to blind a traveler along the street instead of aiding his visability. The locomotive was parked so as to obstruct the entire crossing except about three or four feet on the extreme east side thereof. No lights of any character were burning on the engine and no employee of the company was on or about the engine. It was completely abandoned and had been obstructing the crossing in that situation for at least fifteen minutes. The trial court submitted to the jury the question whether or not the company was guilty of negligence proximately contributing to appellee's damage, and the jury found that issue against the company.
The sole contention of appellant is that it was entitled to a directed verdict, and it relies on the cases of Gulf, Mobile Northern Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, Mobile Northern Railroad Co. v. Kennard, 164 Miss. 390, 145 So. 110; Spilman v. Gulf S.I.R. Co., 173 Miss. 725, 163 So. 445; Mississippi Export R. Co. v. Summers, 194 Miss. 179, 11 So.2d 429, 905, and Summerford v. Illinois Central R. Co., Miss., 196 So. 264.
(Hn 1) In the Holifield case it was held that, in the absence of some peculiar environment, a railroad company is not guilty of negligence when it occupies a public crossing for its legitimate business purposes and that while so doing it is not required to light its cars or station a man with a lantern to give warning of the obstruction, unless the conditions and circumstances are such that the employees know, or in the exercise of reasonable care should know, that a person driving upon the public highway 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 obstruction in time to avoid a collision therewith. The remainder of the cited cases follow substantially the same rule. In each of these cases the railroad company produced evidence to show that at the time of the collision it was ocupying the crossing in pursuit of its legitimate business purposes. (Hn 2) In the case at bar the company made no such showing. From the evidence the jury was justified in finding that the company at the time of this collision was not occupying the crossing in pursuit of any legitimate business purpose, and that, because of the aforesaid environments, the company was guilty of negligence in thus leaving its engine dark and unattended upon the public crossing. Magers v. Okolona, Houston Calhoun City R. Co., 174 Miss. 860, 165 So. 416. The judgment of the lower court is therefore affirmed.
Affirmed.