Boyd v. Illinois Cent. R. Co., 37888

• Decision Date: 09 April 1951
• Docket Number: No. 37888,37888
• Citation: 52 So.2d 21,211 Miss. 409
• Parties: BOYD v. ILLINOIS CENT. R. CO.
• Court: Mississippi Supreme Court

Page 21

52 So.2d 21

211 Miss. 409

BOYD v. ILLINOIS CENT. R. CO.

No. 37888.

Supreme Court of Mississippi, in Banc.

April 9, 1951.

Melvin & Melvin, Pershing B. Sullivan, Laurel, for appellant.

Deavours & Hilbun, Laurel, for appellee.

HALL, Justice.

Appellant brought suit against appellee for the recovery of damages to his automobile as well as for personal injuries sustained by him when he struck a flatcar which was standing upon a public crossing in the unincorporated village of Soso. At the conclusion of appellant's evidence the trial court sustained appellee's motion to exclude the same and directed a verdict in appellee's favor, and this appeal is from a judgment entered thereon. In considering the propriety of the peremptory charge we must view the record in the light of the most favorable conclusions in appellant's behalf which the jury could have reasonably drawn therefrom and must treat as proven all material facts which the evidence established either directly or by reasonable reference. Birdsong v. City of Clarksdale, 191 Miss. 532, 3 So.2d 827, and numerous authorities cited in 2 West's Mississippi Digest, Appeal and Error, k927(7).

Appellant's evidence shows the following facts: Appellee is a common carrier and owns a line of railroad which extends from Laurel to Saratoga; at Soso it maintains a station, the depot being situated about 75 or 100 feet west of a public grade crossing where Mississippi Highway No. 20 passes over the track; at this point the railroad runs approximately east and west and the highway runs approximately north and south; between 20 and 30 feet north of the main line track, and practically parallel therewith, the appellee also maintains a side track, which is likewise crossed by the highway; these two tracks are on a level with each other; approaching from the north the highway runs downhill until the spur track is reached, then it levels off until it passes over both tracks, and then the highway runs uphill; appellee did not provide any stop sign on the north side of its tracks to warn travelers upon the highway as required by Section 7775, Code of 1942, nor did it provide any other kind of notice or warning of the presence of the track; the highway was hard surfaced and was 18 feet in width; approximately 80 feet or more north of the crossing the highway made a slight dip; on the night in question appellee stopped a train upon this crossing in such manner that an empty flatcar, used for transporting pulpwood, was left thereon; the center of this car was approximately upon the center of the crossing; the car was between 36 and 40 feet in length; the wheels under the west end were entirely on the west side of the crossing, and the wheels under the east end were entirely on the east side of the crossing, so that underneath this car that part of the railroad track upon the highway was not obscured in any manner, and from one side of the highway to the other the only obstruction was the floor of the car and the side of a sill about 15 or 18 inches in height upon which the flooring rested and iron rods about one inch in diameter which braced and supported the sill; there had been some rain that day but the pavement had dried and the night was dark and cloudy; there are several business houses in Soso, most of them being along the highway north of the railroad; they had all closed for the night and there was no light burning in either of them nor was there any street light, the whole village being completely dark.

Appellant testified that he had been passing over this crossing for about 20 years; that he had crossed it as much as three or four times in some weeks but that sometimes he did not cross it for as much as three or four weeks, and he estimated that he had been over it an average of once a week for about 20 years, but that most of his traveling was in the daytime and that he had not crossed there very much at night; that in a general way he was familiar with the business houses in the village of Soso and knew that the highway crossed the railroad; that on the night in question he was traveling about 45 miles an hour until he reached Soso and then slowed down to about 30 miles an hour; that he was driving a Pontiac car which was then about one year old; that it had good lights and brakes and that as the highway straightened out his lights illuminated the hill beyond the track and as he started down the hill traveling to the south he was looking for the railroad stop sign so that he might know when he was near the track and after he passed the little dip in the highway the beam of his lights lowered and as he reached the side track where the highway leveled off he discovered the flatcar upon the main line track when he was within about 20 feet of it, and he immediately applied his brakes but was unable to stop before striking it.

Appellee, in support of the action of the trial court, relies upon Gulf, Mobile & Northern Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, Mobile & Northern Railroad Co. v. Kennard, 164 Miss. 380, 145 So. 110; Spilman v. Gulf & Ship Island Railroad Co., 173 Miss. 725, 163 So. 445; Mississippi Export Railroad Co. v. Summers, 194 Miss. 179, 11 So.2d 429, 905, and Summerford v. Illinois Central Railroad Co., Miss., 196 So. 264. In the Holifield case, supra, it was held that a railroad company has the right to occupy a public crossing for its legitimate business purposes, and while so doing it is 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 are such that the employees know, or in the exercise of reasonable care and caution should know, that a person driving upon the 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 cars in time to avoid a collision therewith. The other cases cited above follow substantially the same rule.

Appellant, however, relies upon the recognized exception to the stated rule and insists that the conditions and circumstances here in evidence bring this case within the exception and relies upon Magers v. Okolona, Houston & Calhoun City Railroad Co., 174 Miss. 860, 165 So. 416; Illinois Central Railroad Co. v. McNeil, 205 Miss. 807, 39 So.2d 490; and the Alabama case of Callaway v. Adams, 252 Ala. 136, 40 So.2d 73.

In one or two of the cases cited by appellant it was stated that the presence of the car upon the crossing is all the notice which a traveler needs, but it must be at once apparent that such an expression has no application where the conditions and circumstances are such that reasonable care requires some further warning. If it were true that the mere obstruction of a crossing is sufficient notice that it is obstructed in each and every case, then there would never be any need for the exception and the exception would be a mere waste of words which are meaningless and of no avail in any case. In the Magers and McNeil cases, supra, this Court held in effect that the mere presence of an obstruction of a public crossing by the railroad was not sufficient notice of such obstruction where the conditions and circumstances were such that the jury would be warranted in finding that reasonable care required additional warning.

The Holifield case cites for its principal support St. Louis-San Francisco Railway Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110. In that case the Supreme Court of Alabama clearly recognized the exception to the general rule, and in the more recent case of Callaway, Trustee for Central of Georgia R. Co., v. Adams, 252 Ala. 136, 40 So.2d 73, 75, that Court applied the exception; we quote from the opinion in the latter case:

'Alabama Highway No. 6 makes a grade crossing with the tracks of the Central of Georgia Railway Company within the city limits of Union Springs. On November 17, 1947, about 7:30 p. m., in switching cars, the defendant had left a freight train standing across and blocking this highway, where it remained unlighted, without guard or flagman, for a period of several minutes. The appellee, Adams, was traveling this highway westwardly in his K-7 International Tractor and 28-foot refrigerator trailer. His tractor was equipped with proper headlights and both vehicles with standard brakes in good mechanical condition. He did not know the crossing was there and did not observe the train until just before reaching it, when he was unable to come to a complete stop and his vehicle collided with one of the cars and was demolished. * * *

'The following facts are fully sustained by plaintiff's evidence: By reason of the downgrade of the highway leading west toward the crossing, lights on motor vehicles traveling in that direction are focused only on the roadway until in immediate vicinity of the crossing, at which point the highway makes an abrupt upgrade and the lights the become focused on a view of the crossing. This was the situation with which the plaintiff was confronted immediately as he approached the crossing. The lights of his vehicle were in good order and would reveal an object at considerable distance under normal conditions, but by reason of this topography the presence of the train on the track was not revealed and could not be discovered until within 20 or 30 feet therefrom, and traveling then at a rate of about 20 or 25 miles an hour, he was unable to stop and avoid the collision, since it required about 120 feet distance to bring his vehicle to a halt. The plaintiff was a stranger and not familiar with the locus in quo and had no knowledge or notice of the presence of the car obstructing the highway until too late to stop. The railroad company did maintain on the east side of its track at the crossing a signal light, but due to the view being obstructed by overhanging branches of pecan trees...