Gulf, M. & O.R. Co. v. Joiner

• Decision Date: 24 February 1947
• Docket Number: 36320.
• Court: Mississippi Supreme Court
• Parties: GULF, M. & O. R. CO. v. JOINER.

29 So.2d 255

201 Miss. 442

GULF, M. & O. R. CO. v. JOINER.

No. 36320.

Supreme Court of Mississippi

February 24, 1947

Wilbourn, Miller & Wilbourn and J. V. Gipson all of Meridian, and W. M. Maloney, of Mobile, for appellant.

Parker & Busby, Fred Rogers, J. C. Floyd, and A. B. Amis, all of Meridian, for appellee.

McGEHEE Justice.

This suit is governed by the Federal Employers' Liability Act Title 45 U.S.C.A. § 51, which provides, in substances among other things, that every common carrier by railroad, while engaged in interstate commerce, 'shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, * * * for such injury or death resulting in whole or in part from the negligence of any of the * * * employees of such carrier * * *.'

And Title 45 U.S.C.A. § 54, provides, among other things, that 'such employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the * * * employees of such carrier; * * *.'

The railroad section foreman, Mr. J. E. Joiner, for whose death the administratrix recovered a judgment on behalf of the estate in the trial court against the appellant, Gulf, Mobile & Ohio Railroad Company, was killed by an automobile log truck driven by Mr. Clanton Lockley on January 2, 1943, while the said section foreman was engaged in interstate commerce. The accident occurred at the intersection of a paved highway, twenty feet in width, and the main line of the defendant railroad, in the town of Scooba, Mississippi, after Mr. Joiner had alighted from a railroad motor car into the highway in front of the approaching log truck.

At the intersection, the highway runs east and west and the railroad north and south. The log truck was traveling east, on a clear day, and the driver thereof could have seen the motor car coming from the south for a distance of at least one hundred feet, after he had passed a seed house seventy-one and four-tenths feet from the main track on which the motor car was traveling. Likewise, the operator of the motor car, Mr. Love Hairston, as well as the plaintiff's intestate who was in charge of the motor car and its crew of seven or eight section hands and whose duty it was to give the necessary signals to the operator for the safety of the crew and the movement of the motor car, could have, of course, seen the log truck for the same distance as it approached the railroad crossing after it passed this seed house.

Before the log truck passed the said seed house it had passed another one slightly farther to the west. When the log truck was between these seed houses, the driver looked toward the south and didn't see the approaching motor car, since it was evidently, as he testified, behind the seed house nearer to the railroad track at that time. He did not look toward the south again, but to the north. Nor did he look straight ahead, according to his own testimony, after passing the second seed house which was located as aforesaid a distance of seventy-one and four-tenths feet from the main line track (which was the farthest of the three tracks to the east), until his truck was ready to crash into the 'push car' attached behind the motor car as a trailer. He had started the log truck at a gasoline filling station at a distance of approximately one hundred sixty-five feet from the scene of the accident, and he testified at the trial that he was driving about ten to fifteen miles per hour; and he says that he could have stopped his truck at any time within four or five feet if he had looked in the direction he was traveling and had seen the motor car and trailer which were, according to the plaintiff's proof, traveling at about the same rate of speed as his own in approaching the crossing. He didn't even see Mr. Joiner, the deceased, until he saw his body lying in the highway between the bumper of the log truck and the trailer of the motor car, after he had derailed the trailer, by pushing it off on the east side of the track, at a time when the motor car had more than cleared the south half of the highway.

The trailer was uncoupled from the motor car by the impact and the south end thereof was farther to the east than was the front end thereof. The combined length of the motor car, coupling and trailer, was approximately eighteen feet, and the trailer having been struck in the south half of the twenty-foot wide highway, and the rear end thereof having been pushed farther to the east as aforesaid, the proof is conclusive to the effect that not only did the motor car enter the intersection first, but that the driver of the log truck could have stopped in time to avert the accident after the motor car was entering upon the inetrsection if he had been looking ahead, as it was his duty under the law to do, since he testified as aofresaid that he could have stopped the truck in four or five feet if he had seen the motor car.

There is no dispute in the evidence as to the matters of fact hereinbefore stated as facts, and, in our opinion, there seems to be no logical basis for any different conclusions therefrom than those above drawn.

But the appellee administratrix contends that, nevertheless, the admittedly gross negligence of the driver of the log truck was not the sole proximate cause of the death of Mr. Joiner; but that his death was due in part to the negligence of Mr. Hairston, operator of the motor car, for which the railroad company would be liable.

To establish the alleged negligence of the railroad employee Hairston, the plaintiff introduced three members of the section crew, two of whom were riding on the trailer and the other on the motor car as it entered, or was about to enter, upon the crossing before being struck by the log truck.

No unfavorable inferences are to be drawn against either the plaintiff or defendant for failure to introduce the riding companion of the log truck driver or the other three or four section hands, who were riding on the motor car, since they are not shown to have been available when the case was tried more than three years after the accident.

The plaintiff's witness, Earnest Dale, heard Mr. Joiner holler one time 'ho,' meaning stop. He first testified that this occurred 'right at the crossing.' The plaintiff's attorneys then plead surprise and were permitted to cross-examine him. He then stated that this command was given about one and one-half rail lengths (a rail length being thirty-nine feet) south of the crossing. Then upon cross-examination by the defense attorneys, he went back to his original statement and again testified positively two or three times that the command was given at the crossing. At any rate, he jumped for safety and landed on the north side of the highway. This witness was sitting on the east side of the motor car and was facing east, whereas Mr. Joiner was on the west side facing west.

The plaintiff's next witness was Baxter Little, who had been seated on the trailer, and he testified that Mr. Joiner 'hollered a little bit before we got on the crossing.' And when asked 'How much did he like getting on the crossing when he hollered?' he answered: 'I imagine the distance from here to you,' meaning the distance from the witness to the attorney examining him. He had first seen the log truck when the motor car was almost a rail, or a rail and a half length from the crossing. He wasn't looking at Mr. Joiner, he says, but that he 'lots of times' held out his hand toward approaching traffic and said 'ho,' and on the occasion complained of he admitted that he wasn't looking at him and didn't know whether he held out his hand toward the log truck or not when he said 'ho.' Having seen the truck approaching and thinking the driver 'was going to stop, until he got right close up,' this witness jumped off the trailer and landed about nine and a half feet south of the crossing, when the front end of the eighteen-foot car and trailer were evidently at or on the intersection. He also answered in the affirmative a question as to whether he heard the command 'ho,' given 'when this motor car was crossing the highway crossing.'

Neither of these witnesses, Dale and Little, claimed to have heard the command 'ho' given but one time.

The plaintiff's other eyewitness to the circumstances connected with the accident was John Clark, who says that when the motor car was one rail-length from the crossing, Mr. Joiner stood up, commerced waving his hands 'both ways' and hollered 'ho, ho, ho,' and that this meant for the operator of the motor car to stop. He further testified, however, that 'I made my escape to get off when I looked around and he was hollering 'ho." He was on the east side of the trailer, facing east, and he jumped and landed in the north side of the highway. He was asked: 'Now what if anything did Mr. Joiner do to try to stop the log truck?' And answered, 'I don't know what he done, only just flagging both hands, hollering 'ho"; that he just kept on doing so. He was finally asked: 'Now the reason you jumped, John, was because you were facing east and when you heard your boss hollering 'ho' and looked and saw him waving his hands, you knew there was danger in the wind? A. Yes, sir. Q. And that is when you jumped off? A. That is when I jumped off.' As heretofore stated, he landed in the north half of the twenty-foot highway, although he was riding on the trailer.

All of these witnesses testified unequivocally that they thought the log truck was going to stop, before they determined to jump for safety. And Mr. Joiner evidently thought the same thing even while the motor car was crossing the...