Stapleton v. Louisville & Nashville Railroad Co.

• Decision Date: 22 May 1959
• Docket Number: No. 17271.,17271.
• Parties: Leonard STAPLETON et al., Appellants, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

265 F.2d 738 (1959)

Leonard STAPLETON et al., Appellants, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Appellee.

No. 17271.

United States Court of Appeals Fifth Circuit.

April 15, 1959.

Rehearing Denied May 22, 1959.

Jason H. Floyd, Gulfport, Miss., for appellants.

W. B. Hand, Mobile, Ala., S. E. Morse, Gulfport, Miss., C. B. Arendall, Jr., Mobile, Ala., Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, Ala., of counsel, for appellee.

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

CAMERON, Circuit Judge.

The question presented here is whether the court below committed reversible error in granting a peremptory instruction in favor of the Railroad Company in a suit brought by the beneficiaries of Allen Stapleton, who was killed while sitting on the end of a crosstie near a path across the railroad in the City of Pass Christian, Mississippi. Alleging that the train which killed Stapleton was being operated at an excessive rate of speed, that no sufficient warning of its approach was given, that no proper lookout was being maintained, and that proper steps were not taken to protect him after his peril was discovered, the appellants claim that the evidence presented a question for jury decision. Appellee Railroad Company, on the other hand, charges that deceased was a trespasser or bare licensee upon its track at the time he met his death, and that the evidence failed to show that the Railroad Company was guilty of willful, wanton or gross negligence; and that, under these circumstances and regardless of the status of deceased, there was no evidence of actionable negligence to be submitted to the jury. The trial court took this view and a careful reading of the evidence convinces us of its correctness.

Appellants' main reliance is on the Mississippi Prima Facie Statute § 1741 of the Mississippi Code of 1942, Vol. 2 Recompiled.¹ In making out their case they relied on the testimony of the witness Easterling, who arrived at the place where deceased's body was lying a short time after the train had stopped. The only evidence of injury he noted was that blood was coming from deceased's left ear. His body was lying on the south side of the railroad track and between twenty and thirty feet from the footpath. It is not free from doubt whether this evidence made out a case of injury or death by a running train under such cases as New Orleans & N. E. R. Co. v. McCraney, 1923, 132 Miss. 332, 96 So. 683, but this question is rendered of no moment since the evidence subsequently placed in the record by the railroad company supplied whatever deficiency there was in the proof of the facts attending the accident.

The effect of the Mississippi Prima Facie Statute has been clarified and limited since the Supreme Court of the United States, Western and Atlantic R. v. Henderson, 1929, 279 U.S. 639, 643-644, 49 S.Ct. 445, 447, 73 L.Ed. 884, declared unconstitutional a similar statute of the State of Georgia. There, the Supreme Court referred to the Mississippi statute and its decision upholding it² and differentiated the Mississippi statute in these words:

"Each of the state enactments raises a presumption from the fact of injury caused by the running of locomotives or cars. The Mississippi statute created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. Gulf, M. & N. R. Co. v. Brown, 138 Miss. 39, 66, 102 So. 855 et seq.; Columbus & G. Ry. Co. v. Fondren, 145 Miss. 679, 110 So. 365."

Thereafter, the Supreme Court of Mississippi, in New Orleans & G. N. R. R. Co. v. Walden, 1931, 160 Miss. 102, 133 So. 241, reviewed its cases in the light of this Supreme Court decision and held in effect that, when the facts surrounding the injury are in evidence, the presumption disappears and negligence must be determined from such facts. A short time thereafter the Mississippi Court referred to its Walden decision in Louisville & N. R. Co. v. Cuevas, 1932, 162 Miss. 521, 139 So. 397, and amplified this holding limiting the application of the prima facie statute.

The cases decided by the Supreme Court of Mississippi since said decision are legion.³ It has, in a long line of cases, held that it was the duty of the trial court to grant a peremptory instruction for the railroad company where the prima facie case was satisfied by the disclosure of the facts and the facts failed to show negligence.⁴

A careful reading of the record in this case in the light of the contentions of the parties in their briefs convinces us that the facts were fully disclosed and that, accepting as true those which were undisputed and construing those which were disputed most favorably to the appellants, no negligence on the part of the railroad company was shown. Those facts may be thus summarized:

A fast passenger train of appellee was passing through the incorporated town of Pass Christian some thirty or forty-five minutes after midnight; the engineer and fireman, keeping a lookout ahead of the engine, saw an object on the end of the crossties which turned out to be Stapleton; high weeds and grass revealed by the photographs taken the next day corroborated by testimony, obscured the view to some extent and the engineer first saw deceased when the engine was somewhere between 200 and 368 feet away. The engineer immediately applied the brakes in emergency and sounded an alarm with the whistle; the bell was ringing and had been for some miles; the train was proceeding at a speed upwards of sixty miles per hour, and all of the mechanical means for stopping the train were in good condition. Nevertheless the train struck deceased, sitting on the end of a crosstie with his head in his lap supported by his hands, and ran a distance of from 1600 to 1900 feet, this being the shortest distance in which so equipped, under the existing circumstances it could be stopped. Deceased never moved despite the loud noise of the train, of the bell, and of the blasts of the whistle.

The evidence failed to show how Stapleton got to the point where he was killed. He was last seen sitting at the bar in a restaurant several blocks away a little after midnight. Easterling, witness for appellants, had joined him there about an hour earlier, and deceased drank two beers during that interval. How many drinks he had had before and after was not shown.

When the Easterlings left Stapleton about thirty or forty-five minutes before the train struck him, Easterling stated: "He looked to me like he was sober." Two chiefs of police of Pass Christian whose combined tenures extended over a quarter of a century stated that Stapleton habitually got drunk when he came in from trips of several days duration he was accustomed to make as a shrimp and oyster fisherman. His divorced wife confirmed this proof, and it was shown that on several occasions, he had been arrested for drunkenness at the instance of members of his family. At the time of his death he was living with his father and mother who resided on Woodman Avenue within a short distance of the railroad and of the point of the accident.

As the Easterlings left Stapleton he asked to be taken to Gulfport, which was several miles away, and not to the home of his father. Manifestly he decided later to proceed to their home, although they did not know he was in town.

We accept, for the purposes of this opinion, the theory advanced by appellants that Stapleton was proceeding to his father's house by the use of a path at or near which he was sitting when struck by the train. This path proceeded across the single railroad track of appellee, joining two dead ends of Woodman Avenue, which ran substantially north and south. The nature and use of this path is gathered from the testimony of witnesses, from a sketch produced by appellant's civil engineer and from photographs, some of which were taken the morning after the accident. It entered the right of way from the end of Woodman Avenue on the south and proceeded some fifteen feet to a 1" x 8" board laid by an official of Pass Christian across a 4 foot ditch running longitudinally along the railroad right of way. The path had been in use for twenty or more years. On the south side of the railroad appellee had, many years ago, affixed an old crosstie, and north of the railroad, two cross-ties for the evident purpose of assisting persons using the path in negotiating the grade to and from the railroad track. These had been placed there many years before the accident, and there was no proof as to who had maintained them in position.

The railroad track was substantially six feet higher than the terrain on each edge of the 100 foot right of way. The photographs show that the weeds and stubble were pushed back or worn down for a width of about two feet, but they reveal no path actually crossing the railroad track. This is so because the ties and rails rested on loose slag ballast about 1½ feet above the adjacent terrain exclusive of the height of the exposed rails. The extent of the use of the path was not clearly shown, the deceased's father giving the only definite testimony when he estimated that from thirty to forty people per day use the path. There was no evidence that the path was ever used after midnight, and only a scintilla of evidence that any use at all was made of it during the night hours when the entire area was plunged in darkness.⁵

The train which struck Stapleton, evidently somewhere about his head, was a limited train going from New Orleans eastward to Mobile and did not stop at Pass Christian. The clothes worn by deceased were of a neutral color and the only thing white about him besides his hands and face was a patch over his right eye which he had lost many years before. His head was in his hands supported by his knees, and visibility was minimized by the presence of weeds and grass about two feet high. The primary attention of the enginemen was directed to the public crossings, about five of which were located...