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

• Decision Date: 08 June 1970
• Docket Number: No. 45850,45850
• Citation: 236 So.2d 393
• Parties: GULF, MOBILE & OHIO RAILROAD COMPANY and E. H. Swetman v. Wilda Raye HOLLINGSHEAD, Individually and as Mother and Next Friend of JamesArlie Hollingshead.
• Court: Mississippi Supreme Court

Page 393

236 So.2d 393

GULF, MOBILE & OHIO RAILROAD COMPANY and E. H. Swetman v. Wilda Raye HOLLINGSHEAD, Individually and as Mother and Next

Friend of JamesArlie Hollingshead.

No. 45850.

Supreme Court of Mississippi.

June 8, 1970.

W. S. Murphy, Lucedale, Fred B. Smith, Ripley, Percy W. Johnston, Jr., Mobile, Ala., for appellants.

Cumbest, Cumbest & Shaddock, Pascagoula, for appellee.

ETHRIDGE, Chief Justice.

Wilda Raye Hollingshead, individually and as mother and next friend of James Arlie Hollingshead, a minor, brought this action in the Circuit Court of George County against appellants-defendants, the Gulf, Mobile & Ohio Railroad Company and E. H. Swetman, engineer of its train, for the alleged wrongful death of James Louis Hollingshead, husband and father respectively of the plaintiffs. The jury returned a verdict for plaintiffs, upon which the trial court entered its judgment. However, we conclude that there was no issue to be submitted to the jury, and thus reverse and render judgment here for appellants.

On the day of the accident, November 27, 1965, James Louis Hollingshead was twenty-one years of age, married; and his wife was pregnant with child. For two days rreviously he and three friends had been hunting deer. Hollingshead left home around four a. m. on the morning in question, and he and his friends again engaged in hunting deer, using G. M. & O.'s trestles as 'stands' for that purpose. Around noon, G. M. & O. extra train 603, southbound from Laurel to Mobile, was proceeding through a wooded area in George County. The train was 'drifting' on a slight downgrade at a speed of about thirty miles an hour when it went into a curve, and as it came out of the curve, its speed was between twenty-eight to thirty miles per hour. When the lead locomotive reached a point 900 feet north of railroad trestle 52.4 in the Pascagoula River swamp, the engineer, Swetman, and fireman, Fred Thompson, observed an unidentified object near the middle of the trestle, between the west steel rail and the wooden guard-rail. An emergency application of the brakes was made immediately upon their ascertaining that the object was a human, lying prone and unmoving in that position. This point was proximately 600 feet from the place where the decedent was located. Immediately upon applying emergency brakes, the engineer sounded and continued to sould warning whistles. The long train was making a loud rumbling noise as it proceeded over the tracks. Yet the prone Hollingshead never moved. Before the emergency brakes stopped the train, three locomotives and twelve box cars passed the point on the trestle where the body was seen, killing Hollingshead.

Train 603 consisted of three General Motors, GP-35 locomotives of 2500 HP each, coupled to 106 freight cars, of which 94 were loaded, and 12 empty. The train weighed 9,834 trailing tons and 386 locomotive tons, or an aggregate of 10,220 tons. Its overall length was 4,945 feet. The braking system of the train had been inspected, checked, and found to be in good working order before its departure from Laurel. Although the whistle was sounded during the entire 600 feet the train approached the prone Hollingshead and the train made a loud noise on the tracks with emergency brakes applied, Hollingshead gave no indication that he heard the oncoming behemoth. There is no positive proof that he was living, although one of his hunting companions saw him walking toward trestle 52.4 about eleven a. m. The rumble of the train on the tracks and the whistle were heard by the three other members of decedent's hunting party, who were some distance away.

Hollingshead was a trespasser on the railroad trestle. It is settled in this State that the servants of a railroad company in charge of its train are under no duty to keep a lookout for trespassers on the railroad track, and are required only to exercise reasonable care to prevent injuring a trespasser after they have discovered and realized his peril. Dickerson v. Illinois C. R. R., 244 Miss. 733, 145 So.2d 913 (1962). The test of responsibility arises when the engineer becomes aware of the presence and peril of the trespasser. Illinois C. R. R. v. Ash, 128 Miss. 410, 91 So. 31 (1922); Louisville, N. O. & T. Ry. v. Williams, 69 Miss. 631, 12 So. 957 (1892). Until made aware of the presence and peril of the trespasser, 'there could not be wilful negligence or wanton misconduct toward an unrecognized, undiscerned trespasser.' Louisville, N. O. & T. Ry. v. Williams, 69 Miss. 631, 641, 12 So. 957 (1892).

The circuit court properly gave peremptory instructions for the defendants on the following allegations made by plaintiff: (1) negligent failure to keep a reasonable and proper lookout; (2) negligent failure to see that which the engineer should have seen; (3) negligent failure to give adequate and timely warnings, by whistle, horn, or otherwise, of the approach of the train; (4) negligent use of defective braking equipment.

The sole issue submitted to the jury by the court was whether the engineer failed to exercise ordinary and reasonable care to stop the train before striking Hollingshead, after the engineer recognized the object on the trestle as a human; or stated differently, after the engineer recognized the object as a human, whether the train was then 'a sufficient distance (for the engineer) to be able to stop said train by the exercise of ordinary and reasonable care before striking' Hollingshead.

Was there sufficient evidence to make an issue for the jury on whether Engineer Swetman, after identifying the object on the trestle as a human, could in the exercise of reasonable care have stopped the train before it reached Hollingshead? We concluded that the uncontradicted evidence of any probative value requires a negative answer, namely, that the train simply could not have been stopped before it hit plaintiffs' decedent.

Swetman put on the emergency brakes of the train at 600 feet from decedent, and, he said, the train finally stopped 400-500 feet down the track from the point of impact, a total of 1000-1100 feet from the point of application of emergency brakes. There is no dispute in the evidence as to the actions of the engineer when he discovered that the object on the trestle was a human, being, and that was that he did everything he possibly could do to stop the train. This was confirmed by the fireman Thompson, who was only a few feet away. The credibility of these witnesses has in no way been attacked. Moreover, upon applying the emergency brakes, the engineer immediately began to blow the whistle, many times, and continued to blow it until the body was passed. Nor is there any evidence that the engineer or fireman could have recognized the object lying prone between the rails and the trestle guardrails as a human being more than 600 feet away.

F. J. Wright, a traveling engineer for another railroad, of many years experience and training, particularly with air brakes, discussed in knowledgeable detail the emergency application of air brakes on a train of the size and weight of No. 603. He said there would be a time lag of approximately nine seconds between the times the valve was opened and the brakes would begin to apply. In this time span, the train would travel 396 feet...