Gulf, M. & N. R. Co. v. Holifield

• Decision Date: 25 February 1929
• Docket Number: 27734
• Citation: Gulf, M. & N. R. Co. v. Holifield, 152 Miss. 674, 120 So. 750 (Miss. 1929)
• Parties: GULF, M. & N. R. CO. v. HOLIFIELD. [*]
• Court: Mississippi Supreme Court

120 So. 750

152 Miss. 674

GULF, M. & N. R. CO. v. HOLIFIELD. ^[*]

No. 27734

Supreme Court of Mississippi

February 25, 1929

Division A

1 RAILROADS. Railroad company had right to occupy crossing with cars for its legitimate business purposes.

Railroad company had right to occupy crossing with its freight cars for its legitimate business purposes.

2. RAILROADS. Absent peculiar environment, railroad employees are justified in believing travelers in automobiles properly lighted and driven will observe cars on crossing at night in time to avoid collision.

In absence of some peculiar environment, railroad employes are justified in believing that travelers in automobiles properly lighted and driven at a reasonable speed will observe railroad cars upon crossing at night in time to avoid coming into collision with them.

3 RAILROADS. Evidence of railroad's negligence in leaving on crossing at night without warning, cars which plaintiff's automobile struck, held insufficient for jury.

In action against railroad company for damages to plaintiff's automobile when it was driven into freight cars standing on crossing, evidence of railroad company's negligence in leaving cars on crossing at night, without maintaining lights on cars or stationing man with lantern at crossing to give warning that it was obstructed by cars, held insufficient to require submission of question to jury.

HON. R. S. HAL, Judge.

APPEAL from circuit court of Jones county, Second district, HON. R. S. HALL, Judge.

Action commenced in county court by L. Holifield against the Gulf, Mobile & Northern Railroad Company. From a judgment of the circuit court affirming a judgment for plaintiff, defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

W. S. Welch, Ellis B. Cooper, Roy P. Noble, and Jas. T. Welch, for appellant.

This case must, of necessity, go off on the question of appellant's duty to have a member of the crew present with a light to warn travelers on the highway. This court has never decided the question, but other courts have. See Gilman v. Central Vermont R. Co., 93 Vt. 340, 107 A. 122, 16 A. L. R. 1102; Gage v. B. & M. R. Co., 77 N.H. 289, 90 A. 855; McGlauflin v. B. & M. R. Co., 230 Mass. 431, 119 N.E. 955; Orton v. Pennsylvania R. Co., 7 F. (2 Ed.) 36; St. Louis & San Francisco Ry. Co. v. Guthrie, 216 Ala. 613. These authorities, we submit, are in point. They embrace the whole case. Applying them here, they appear decisive.

Here we have a known crossing. A cut of huge box cars was on the crossing. Beyond the cars was a street light which certainly would have silhouetted the box cars to one careful of his approach. Had it been a wagon on the street, or had it been another car parked in front of the owner's home, the result would have been the same. We submit that in view of the authorities cited, and we have found no contrary authorities, and the undisputed evidence the appellant was entitled to a directed verdict.

G. W. Hosey, for appellee.

We submit that Hines v. McCuller, 121 Miss. 666, 63 So. 734, is not in point for the reason that this suit was not brought nor was it submitted to the jury on this theory alone, but we do contend that there being no signs erected at this place that it was a crossing which was rarely used by the defendant company's trains, and the traveling public rarely if ever saw a train upon said track or even knew that such a railroad track was ever used by the trains at all.

Gilmon v. Central Vermont Railroad Company, 93 Vt. 340, 107 A. 122, is not in point with the case at bar, because this case only involved one of the elements which go to make up the negligence shown by the railroad company's agents in the case before the court. This suit was not brought nor was it submitted to the jury on the question of not leaving a person guarding with a light the said railroad car. Neither is the case of Gage v. Boston & Main R. R. Co., 77 N.H. 289, 90 A. 855, in point. The accidents in both of the above-mentioned cases happened either on the main-line crossing or on a siding near the main-line crossing, and not as in the case at bar, on an industrial track rarely used, a great distance from the main line.

The appellee contends that no negligence on the part of the driver of appellee's car was shown by the testimony in the case at bar. The evidence shows that he was travelling at a rate of speed from ten to fifteen miles per hour, that the car was equipped with standard headlights which were burning, that the driver was looking out ahead and using ordinary care and caution the same that any prudent person would use. The evidence shows that this crossing was seldom used by the railroad, was dark, at a low place and was very dusty and that a person standing on his porch twenty steps away could barely see the car after his attention had been called to it by the collision.

The appellee has complied with the rule laid down in case cited by appellant, St. Louis, etc. , Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215.

Argued orally by Ellis B. Cooper, for appellant.

OPINION

COOK, J.

The appellee, L. Holifield, instituted this suit in the county court of Jones county seeking to recover for the damage done to his automobile when it was driven into certain freight cars which were standing on and across one of the streets of the city of Laurel. There was a judgment in the county court for two hundred and fifty dollars in favor of the appellee, and from this judgment the railroad company appealed to the circuit court. In the circuit court the judgment was affirmed, and thereupon the railroad company appealed to this court, and here assigns as error the refusal of the court below to grant it a peremptory instruction.

The facts shown by the record which are necessary to be here stated are substantially as follows: The appellee loaned his automobile to his brother, who took a young lady riding therein, and they were proceeding north on South Fourth avenue in the city of Laurel at about eight o'clock at night. Across this street the appellant has two switch tracks over which it moves cars to serve several industrial plants located in that section of the city, and on the occasion in question the switch crew of the appellant company left a cut of freight cars standing on and across this street while they were picking up another car. The street is graveled and is straight for some distance in both directions from the railroad tracks. About seventy-five or one hundred feet south of the switch tracks there is a canal, while about two hundred feet north of the track at Jefferson street, there is a small street light. There are buildings on each side of this street as you approach the railroad tracks from the south, and there is at this crossing no sign or warning of the presence of the railroad tracks across this street.

Arthur Holifield, the driver of the automobile, testified that the territory at and adjacent to the railroad...