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

• Decision Date: 21 May 1962
• Docket Number: No. 42223,42223
• Court: Mississippi Supreme Court
• Parties: Gavin GREEN, Administrator of the Estate of Robert Bolton, Deceased, v. GULF, MOBILE & OHIO RAILROAD COMPANY.

Page 216

141 So.2d 216

244 Miss. 211

Gavin GREEN, Administrator of the Estate of Robert Bolton Deceased, v. GULF, MOBILE & OHIO RAILROAD COMPANY.

No. 42223.

Supreme Court of Mississippi.

May 21, 1962.

Ben Stevens, Hattiesburg, Jesse M. Byrd, Leakesville, Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.

Welch, Gibbes & Graves, Laurel, for appellee.

KYLE, Justice.

The appellant, Gavin Green, Administrator of the Estate of Robert Bolton, deceased, filed his declaration in the Circuit Court of Greene County against the appellee, Gulf, Mobile & Ohio Railroad Company, for the recovery of damages under the wrongful death statute for the death of Robert Bolton, who was killed in an automobile accident which occurred on State Highway No. 59 on May 22, 1955, when the automobile in which he was riding collided with a railroad boxcar which blocked the railroad crossing at a point near McLain, in Greene County. The cause was heard at the May 1960 term of the court, and at the conclusion of the evidence the jury returned a verdict for the appellant in the amount of $9,500, and judgment was entered thereon. The appellee filed motions for a new trial and for a judgment notwithstanding the verdict, and after hearing arguments on the motion for judgment notwithstanding the verdict the court sustained the motion and set aside the judgment theretofore entered, and entered a judgment for the appellee. From that judgment the appellant has prosecuted this appeal.

The record shows that the accident occurred about 2:30 o'clock A.M. on the above mentioned date at a point on the above mentioned state highway near Greene County Vocational Colored School, approximately one mile southeast of McLain; and that the automobile in which the plaintiff's intestate was riding was a Plymouth automobile owned and being driven by Arthur James Bryant. The general course of the highway in that vicinity was north and south, and the general course of appellee's railroad track was northwestwardly and southeastwardly. From the photographs offered in evidence by agreement of the parties it appears that the highway north of the crossing curved to the right as it approached the railroad crossing. The freight cars which blocked the crossing at the time of the collision constituted a part of a long freight train consisting of 159 freight cars and four diesel motor units enroute northward toward McLain and the town of Beaumont. There was a sharp conflict in the testimony offered on behalf of the appellant and the testimony offered on behalf of the appellee on the issue as to whether the train was moving at the time of the collision, or had stopped. The appellant's proof showed that the freight train had come to a stop, completely blocking the highway crossing for a considerable period of time before the accident occurred, and several of the freight cars and the caboose were south of the crossing, with no opening left for the passage of motor vehicles using the highway. It was also shown by the appellant's witnesses that no flagman was stationed at the crossing or north of the crossing to warn the deceased that the train had blocked the crossing. The appellee's witnesses testified that the train was still in motion at the time the accident occurred, and that the train came to a stop after the accident occurred. The evidence shows that the driver of the car and the appellant's intestate were both killed instantly as a result of the collision.

The appellant alleged in the first count of his declaration that the appellee knew or should have known that said highway was heavily traveled night and day; that the highway north of the crossing curved to the right as it approached the crossing; that the special conditions at the crossing created a trap and an unusual special hazard which required that the appellee, in the exercise of ordinary care, give reasonable warning to the deceased of the presence of the appellee's train upon the crossing; that the conditions were such that the appellee knew or should have known by the use of reasonable care that persons, including the deceased, traveling on said highway at a reasonable rate of speed in an automobile equipped with brakes and lights, could not or might not be able to see the appellee's freight cars blocking the crossing in time to avoid a collision. The appellant also alleged that the atmosphere was foggy at the time the accident occurred, making the crossing more hazardous; that all of the above mentioned conditions combined created an unusually dangerous contition at the crossing; that the appellee was negligent in failing to maintain a flagman or provide some other warning system to warn travelers on the highway of the danger, in view of the special conditions above mentioned; and that the appellee's negligence, as set forth in the declaration, was the proximate cause of the collision.

In the second count of his declaration the appellant alleged that the defendant was negligent in stopping the freight cars connected with the train on the crossing, and in failing to uncouple the cars to as not to obstruct traffic on the highway for a period of time longer than five minutes, as required by Section 7780, Miss.Code of 1942, Rec.

The appellant's attorneys have assigned and argued only one point as ground for reversal of the judgment of the lower court, and that is, that the lower court erred in setting aside the verdict of the jury in favor of the appellant and entering judgment in favor of the appellee notwithstanding the verdict of the jury.

We think the court erred in sustaining the motion of the appellee for a judgment notwithstanding the verdict, and in entering a judgment in favor of the appellee.

In considering the propriety of the action of the trial judge in sustaining the appellee's motion for a judgment notwithstanding the verdict, we must view the evidence in the light most favorable to the appellant, and treat as proved all material facts which the appellant's evidence established directly or by reasonable inference. Grice v. Central Electric Power Association, 230 Miss. 437, 92 So.2d 837, 96 So.2d 909; and cases cited. See also Railway Express Agency, Inc., v. Mallory (C.C.A.5th, 1948), 168 F.2d 426.

The testimony offered on behalf of the appellant consisted mainly of the testimony of L. R. McMillan, who was principal of the Greene County Consolidated School at the time the accident occurred. McMillan testified that he resided on the school property during the 1958-1959 school year; that the school buildings were located on the west side of the highway about 75 yards from the railroad track; that he had attended the closing exercises of the school during the early part of the night of May 21; that it was about 11 o'clock P.M. when the crowd left the school building; and that he carried some of the children to their homes, but he was back at home on the school grounds by 12 o'clock. He stated that he was up constantly, however, during the night, and that he heard the freight train blow at the lower crossing where it blocked the road; that he was on an inspection round over the school grounds at that time to see that there were no trespassers on the school property; and when the train stopped he heard the engine blowing in town, as it was accustomed to do. He stated that a few minutes later he saw the lights of an automobile proceeding southwardly along the highway at a normal rate of speed; and he then heard a collision at the railroad crossing. That was approximately 20 minutes after the train had come to a stop. There were no flashlights at the crossing; there were no bells ringing; and there was no flagman at the crossing.

McMillan stated that he was dressed in his night clothes and had his flashlight in one hand while he was walking over the school grounds, and after he heard the crash at the railroad crossing he went back into his house and put on his pants and went immediately to the scene of the accident. He stated that the train pulled up beyond the crossing just as he came up to the crossing. It was a long train, part of it being to the right of the crossing and part to the left of the crossing. He saw at once that the two boys who were riding in the car were dead. He recognized both boys. They had attended his school closing during the early part of the night. McMillan stated that the highway was a paved concrete highway that he had driven over many times; that there was a Mississippi Stop sign on the right side of the highway; that there was a curve in the highway as it approached the railroad crossing from the north 10 or 15 yards from the track; that the curve was to the right and it was a 'pretty sharp curve.' He stated that the railroad car with which the automobile collided was a gondola type car with no top on it; that the sides of the flat cars were of a dark color, and there were no lights of any kind on the cars which blocked the crossing. On cross-examination McMillan stated that he did not know who owned the automobile in which the boys were riding but Arthur Bryant was driving the car. He stated that the train was standing still when the automobile hit; and that his best judgment was that the accident occurred after one o'clock. On redirect examination McMillan stated that the reason for his marking a round of inspection of the school properties at such a late hour of the night was, that he had had trouble with people breaking and entering the school buildings, that one man had been convicted of stealing from the school lunch room, and there had been several other breakins for the purpose of stealing school commodities and supplies.

The railroad witnesses testified that the train was moving at the time of the collision, and that the automobile in which the deceased was riding hit the ninth car from the rear of the 159-car train.

H. J. Allerton, engineer, testified that he drove over the crossing at a rate of speed of about 30 miles...