Illinois Central Railroad Company v. Underwood

• Decision Date: 04 October 1956
• Docket Number: No. 15913.,15913.
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. Nathan R. UNDERWOOD and Richard M. Murray, Jr., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

235 F.2d 868 (1956)

ILLINOIS CENTRAL RAILROAD COMPANY, Appellant, v. Nathan R. UNDERWOOD and Richard M. Murray, Jr., Appellees.

No. 15913.

United States Court of Appeals Fifth Circuit.

August 3, 1956.

Rehearing Denied October 4, 1956.

R. L. Dent, M. E. Ward, Vicksburg, Miss. (Burch, Porter & Johnson, Memphis, Tenn., Joseph H. Wright, Vice-President and Gen. Counsel, Illinois Central R. R. Co., Chicago, Ill., John W. Freels, Gen. Solicitor, Illinois Central R. R. Co., Chicago, Ill., of counsel), for appellant.

Landman Teller, Vicksburg, Miss., Fred C. Berger, Natchez, Miss., E. H. Cunningham, Jr., Jackson, Miss., for appellees.

Before HUTCHESON, Chief Judge, and CAMERON and BROWN, Circuit Judges.

CAMERON, Circuit Judge.

This appeal calls on us to decide whether evidence offered in the present trial was sufficiently different from that before us when we reversed the case on the prior trial, to bring about a different result. An automobile driven by appellee Murray, in which appellee Underwood was a passenger ran into the side of a freight train, and both appellees sustained serious injuries. The two actions brought against the Illinois Central Railroad Company, appellant, were consolidated and resulted in a directed verdict in favor of the Railroad on the first trial. We reversed,¹ holding that, "Under the evidence in this case," the jury might find in favor of the two injured men on the doctrine of Last Clear Chance.

In stating the facts before the Court in the former appeal we used in part the following language:

"The railroad crossing accident in which the appellants were injured occured at about 8:30 o\'clock on the night of April 11, 1950, at what is known as the Selma crossing on U.S. Highway 61, about eight miles north of the city of Natchez, Mississippi. Just prior to the collision, the automobile driven by Murray, and in which Underwood was a passenger, was traveling in a southerly direction and the train had been traveling in a northerly direction. The extent of the traffic on the part of the railroad between Natchez and Harriston, a town about twenty-eight miles further north, was one freight train each twenty-four hours from Natchez to Harriston and return, with no passenger trains running on that part of the railroad. Both the highway and the railroad ran in a northerly and southerly direction. North of the crossing, the highway was on the west side of and almost parallel to the railroad until it got close to the crossing, when it made a left curve, went across the railroad, then a right curve and continued to go south. The highway was practically straight for a distance of 225 feet just north of the crossing, though the investigating officer testified that in his opinion a car coming around the curve would be only about 150 feet away from a train occupying the crossing when the automobile lights first shone on the train. At a point on the west side of the highway fifty-six feet north of the crossing was a sign reading `Stop, Mississippi Law\', and at a point seven hundred twenty feet north of the crossing was another sign reading `Railroad Crossing\'. At the point of the crossing there was a thirty-four degree angle between the railroad and the highway.

"There is a side track on the east side of the main line of the railroad just south of the crossing, at such distance that the part of the main line between the highway and the switch will hold a locomotive and a railroad car. As the train proceeded northerly, the engineer brought it to a stop before reaching the crossing, uncoupled the engine, backed into the siding, and picked up a box car loaded with pulpwood. He then pulled out on the main line, backed in to recouple with his train, and had proceeded on northerly to a point where the collision occurred. The automobile ran into the eighth car of the sixteen car freight train.

"There was no dispute as to the facts thus far stated. Under the evidence, the jury would have been authorized to find the following additional facts. The automobile, a new 1950 model Buick was in perfect condition, including its brakes, steering gear and lights. Murray was a good and careful driver. Murray had been on this particular section of the highway on one other occasion and Underwood had never before traveled this part of the highway. The automobile had been traveling at a speed of approximately fifty-five to sixty miles per hour with bright or driving lights on. Murray and Underwood each testified that he was awake and watching but denied seeing either of the warning signs. They both saw the train for the first time when the lights of their automobile shone on the railroad car, but Murray\'s efforts then to avert the collision were unavailing."

The former opinion then proceeded with an extended quotation from the engineer's testimony, but we end the quotation at this point for the reason that the testimony quoted in the former opinion was taken from an exploratory deposition taken by appellees some months before the first trial, while this time the engineer testified in person,² being examined by the railroad's attorneys for the first time. Based exclusively upon the deposition testimony of the engineer including his estimate as to how far his train ran after application of the brakes in emergency, we concluded before that "the automobile would have been somewhere between 300 feet and 800 feet north of the crossing when the engineer applied the brakes." We further concluded that, "The engineer north of the crossing may have had a clear view of highway traffic moving south, while the train and the lights on the engine may not have been obvious to the operator of the motor vehicle." Emphasis supplied in each instance.

Based upon the testimony at the former trial and the quoted assumptions we found then to be sustained by it, we concluded that the Court below had committed error in directing a verdict in favor of the railroad company at the end of appellee's testimony, citing the rule of law recognized by the Supreme Court of Mississippi:

"When the engineer saw and appreciated the peril, it was his duty to use every reasonable means to prevent the collision."

In the former opinion we recognized that the Supreme Court of Mississippi had, in a long line of decisions, recognized the rule that the presence of a train of cars making legitimate use of a crossing is, of itself, sufficient warning to approaching motorists.³ We pointed out, however, that, in the case of Boyd v. Illinois Central Railroad Co., 211 Miss. 409, 52 So.2d 21, the Mississippi Court had recognized that exceptional circumstances might exist at the crossing which would warrant the non-application of the rule. The exceptional circumstances there existing were that the railroad had not, as required by law,⁴ provided the Mississippi Stop Sign, that there was a dip in the road a short distance away from the intersection and a down-grade just before reaching the main track, deflecting downward the lights of approaching automobiles; that the railroad had stopped a flatcar straddle the crossing, which presented to the oncoming motorist a view only of the side of a sill about fifteen or eighteen inches across; and that Boyd, realizing that he was approaching the vicinity of the railroad track, was looking for the stop sign to indicate when he was actually approaching the point of intersection and was lured into the danger by its absence. Our conclusion based upon that case and certain cases dealing with the doctrine of Last Clear Chance, was "Under the evidence in this case, it was open to the jury to find that the engineer saw and appreciated the peril of the appellants and the fact that they were unaware of the train in time to give warning by a blast or blasts of the whistle * * *"

Upon a second trial of the consolidated cases the jury was unable to reach a verdict, and upon a third trial the jury found in favor of appellee Murray in the sum of $5,000 and of appellee Underwood in the sum of $45,000. The Court below tracked our former opinion meticulously and no errors are assigned in connection with its charge. But we think that the Court below erred in denying the railroad's motion for a directed verdict at the end of all of the evidence for the reason that the evidence in this case met and repelled the assumptions quoted above upon which the case was decided on the former appeal.

In this case the testimony of appellees was somewhat different from what it had been in the first trial, all of the members of the train crew testified, both on direct and cross-examination, showing full performance of the duties laid upon them by law; the engineer amplified the testimony he had given on ex parte examination by appellees' attorney; and, in addition, evidence was admitted without objection of experiments conducted by engineer Mobley and others which demonstrated that it was physically impossible for him to see appellees' car at a sufficient distance from the point of collision to warrant the finding that it was reasonably probable that the engineer could have done anything to prevent the accident. This experimentation and the measurements developed by it furnished by far the most important additional evidence and will be discussed fully below.

The evidence here shows without dispute that the concrete highway upon which appellees approached the point of collision was substantially level (1.13 percent grade); that the curve to the left was very slight (1° 30') and reached a straightaway 222 feet from the railroad track; that appellees faced a reflective type crossing sign, two and one-half feet in diameter with the top five feet from the ground, 675 feet from the crossing and the regular Mississippi Stop Sign 56 feet from the crossing, both of which signs were, by the slight curve, thrown directly into the rays of the car headlights. It was further undisputed that a series of moving railroad cars were passing along in front of appellees which...