Badger v. LOUISVILLE & NASHVILLE RAILROAD COMPANY

• Decision Date: 04 August 1969
• Docket Number: No. 27612 Summary Calendar.,27612 Summary Calendar.
• Citation: 414 F.2d 880
• Parties: Eleanor Anne Patton BADGER et al., Plaintiffs-Appellants, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 880 (1969)

Eleanor Anne Patton BADGER et al., Plaintiffs-Appellants, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellee.

No. 27612 Summary Calendar.

United States Court of Appeals Fifth Circuit.

August 4, 1969.

George S. Shaddock, D. Cumbest, Cumbest, Cumbest & Shaddock, Pascagoula, Miss., for appellants.

George E. Morse, Gulfport, Miss., W. B. Hand, Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., George E. Morse, Morse, & Morse, Gulfport, Miss., for appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

Following a jury verdict awarding damages for the wrongful death of the driver of an automobile with which the railroad collided at the intersection of its tracks and a highway, the District Court denied appellant's motion for a new trial on damages only and granted appellee's motion for judgment notwithstanding the verdict. We reverse.¹

Within the city limits of Pascagoula, Mississippi, about two o'clock in the afternoon of a clear day in August, 1966, the decedent, Doris Morgan Patton, was driving her station wagon in a northerly direction on Chico Road. As she was crossing the main line of the Louisville & Nashville Railroad, one of its passenger trains consisting of two engines and six cars, travelling in a westerly direction at 65 to 70 miles per hour, struck the vehicle resulting in Mrs. Patton's fatal injuries.

The husband and daughters of the decedent, as her heirs at law, sued the railroad under the Mississippi Wrongful Death Statute,² charging it with negligence in failing to exercise due care in traversing at excessive speed, without a proper lookout and without sounding its statutory warning signal,³ a hazardous and dangerous crossing where it had permitted the view to become obstructed by high grass, shrubbery and trees.

There was hopeless conflict in the evidence concerning whether train signals were given, whether the view from the vehicle to the train was not obstructed, fully obstructed, or partially obstructed, and, if so, what distance down the track could be seen from what distance down the road. We do not know whether Mrs. Patton saw the train before the impact. We do know that the engineer saw the vehicle when the engine was 120 to 160 feet from the crossing — some 3 to 4 seconds before impact.

The trial judge, under these circumstances, wisely submitted the case to the jury on both liability and damages with a charge, however, that as a matter of law the railroad had the right of way at the crossing and that the decedent was guilty of negligence which contributed to her fatal injuries, thus the comparative negligence rule should be applied.⁴

We are convinced that the issues were properly presented to the jury and that the judgment on its verdict should be reinstated.

While it is true that Mississippi has, by statute, committed to the jury all questions of negligence and contributory negligence,⁵ we agree with the District Court that the Mississippi statute is not controlling. The Boeing Co. v. Shipman, 5 Cir.1969, 411 F.2d 365; Johnson v. Buckley, 5 Cir.1963, 317 F.2d 644; Revlon, Inc. v. Buchanan, 5 Cir. 1959, 271 F.2d 795, 81 A.L.R.2d 222; Mississippi Power & Light Co. v. Whitescarver, 5 Cir.1934, 68 F.2d 928. The court was required to apply the standards of proof as delineated in Boeing in determining whether a peremptory instruction should be given for the railroad on liability, or judgment n. o. v., or whether such an instruction should or should not be given on the issue of contributory negligence.

It is undoubted that there were obstructions to the view of an automobile driver when a train was approaching this dangerous crossing from the vehicle's right. The density of the obstruction and whether one must come dangerously close to the track before being able to see the train were factual resolutions to be made by the jury. Cf. Howard v. Missouri Pac. R. R., 5 Cir. 1969, 410 F.2d 1144. If the crossing, by virtue of these conditions, is unusually dangerous, ordinary care requires the railroad to meet the peril with unusual precautions, as by a lesser rate of speed, or by increased or additional warnings. See Illinois Central R. R. v. Williams, 1961, 242 Miss. 586, 135 So.2d 831; Gulf, Mobile & O.R.R. v. Scott, 1953, 216 Miss. 532, 62 So.2d 878; New Orleans & Northeastern R. R. v. Lewis, 1952, 214 Miss. 163, 58 So.2d 486. The speed of the train was 65 or 70 miles per hour at the crossing when the accident occurred, although the railroad's time book prescribed a limit of 25 miles per hour for some distance before, and at the place of the accident. We are more persuaded by what the railroad's time book stated was a reasonable speed under the circumstances than by the argument of its counsel that it makes no difference whether the train was travelling 100,000 M.P.H. More importantly, however, the jury apparently found the time book...