Gulf & S. I. R. Co. v. Carlson

• Decision Date: 15 December 1924
• Docket Number: 24563
• Citation: 137 Miss. 613,102 So. 168
• Parties: GULF & S. I. R. CO. v. CARLSON. [*]
• Court: Mississippi Supreme Court

102 So. 168

137 Miss. 613

GULF & S. I. R. CO. v. CARLSON. ^[*]

No. 24563

Supreme Court of Mississippi

December 15, 1924

(Division A.)

1. RAILROADS. Whether crossing signals were given held for jury.

In action for death of bus passenger killed in collision between train and bus at crossing, whether bell of locomotive was sounded and whistle blown on approach of crossing as required by Hemingway's Code, Section 6669, Code 1906, Section 4045, held for jury.

2 CARRIERS. Bus driver, who tried to cross track in front of approaching train, held grossly negligent.

Bus driver, who tried to cross track with knowledge of approaching train or who could have seen train if he had looked or listened, held guilty of gross negligence.

3 TRIAL. Argument of counsel to jury that defendant was liable because court had directed verdict for codefendant held proper.

In action against bus company and railroad for death of bus passenger killed in collision between bus and train at crossing, in which court directed a verdict for bus company statements of plaintiff's counsel in argument to jury that court had held bus company not liable, and that it being conceded that one of defendants was liable, it was duty of jury to return verdict against railroad company held proper.

4 NEGLIGENCE. Negligence of bus driver not imputed to passenger.

In action for death of passenger of bus killed in collision between bus and train at crossing, bus company's negligence could not be charged to passenger.

5 TRIAL. Rule as to direction of verdict for one tort-feasor stated.

In action against alleged joint tort-feasors, the court may direct a verdict in favor of one, but before doing so it ought to clearly appear that there is no evidence tending to show liability on part of party so dismissed, and that no injury will thereby be inflicted on codefendant.

6. APPEAL AND ERROR. Erroneous direction of verdict for codefendant in action for death held cause for reversal as to remaining defendant as being equivalent to directing verdict against it.

In action against bus company and railroad for death of bus passenger killed in collision between bus and train at crossing, in which the evidence overwhelmingly showed negligence of bus driver, direction of verdict for bus company held reversible errror as to railroad, as meaning that railroad alone was at fault.

Division A

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Suit by Mrs. G. Carlson against the Gulf & Ship Island Railroad Company and another. Judgment for plaintiff against named defendant, and named defendant appeals. Reversed and remanded.

Appellee, Mrs. G. Carlson, sued appellant Gulf & Ship Island Railroad Company and Lott and Steele, owners of an auto bus line (who for convenience will be referred to as the bus company), as joint tort-feasors producing the death of her husband, for damages for such death. After the close of the evidence the court directed a verdict for the bus company, and submitted the case to the jury as against appellant upon the evidence and instructions. There was a verdict and judgment for appellee for fifteen thousand dollars, from which appellant prosecutes this appeal.

The case as shown by the record is as follows: Appellant's railroad line runs in a northerly direction from Gulfport to Jackson in this state, passing through Hattiesburg. The defendants Lott and Steele operated an auto bus line for the carriage of passengers from Gulfport to Hattiesburg. On the 9th of February, 1924, appellee's husband was a passenger on their bus line from Gulfport to Hattiesburg. At Landon, about four miles north of Gulfport, while the bus was attempting to cross appellant's line of railroad on the public highway from east to west, there was a collision between the bus and appellant's passenger train No. 1 going south, which resulted in the death of appellee's husband. The bus contained three passengers besides appellee's husband. Appellee in her declaration charged that the collision and injury were caused by the joint tort of appellant and the bus company; that appellant's negligence consisted in failing to have its train under control, in running at an excessive rate of speed, and in failing to give the statutory signals on approaching the highway crossing where the collision took place. It charged defendant bus company with negligence in failing to keep proper lookout for the approaching train, and negligently driving the bus on the railroad track in front of a fast approaching train. Appellant pleaded the general issue as did the bus company, and in addition the latter pleaded, specially charging that the view of the train as it approached the crossing was obstructed by a growth of bushes by the side of the right of way of appellant's track. The bus was being driven by Earl Waddell for the bus company. The other passengers than appellee's husband were Steve Grantham, S. Hamburger, and Ella Grace, a negro woman. About four miles north of Gulfport there is a flag stop on appellant's railroad called Landon. From Gulfport up to this place the public highway runs north on the east side of appellant's railroad track. At Landon for some distance the highway parallels the railroad track about fifty or sixty feet away on the east side, and turns at right angles and crosses the railroad track to the west and continues north for some distance on the west side. It was at this crossing the collision between appellant's train and the bus took place. The driver of the bus was not called as a witness. Grantham, one of the passengers on the bus, testified that the train could have been seen up the railroad track before the bus reached the track, but he was not looking; that he did not see the train until the bus was on the track and the train was right up at the bus; that at a point about thirty-five feet away from the railroad track there was a clear view, and nothing in the way of seeing the train as it approached; that he never heard the whistle blow or the bell ringing at any time before the collision, and that he knew that after he saw the approaching train the bell did not ring nor did the whistle blow; that the bus was going something like ten to twelve miles an hour, and the train from twenty-five to thirty miles an hour.

Hamburger, another passenger, testified that he did not hear the train approaching until the bus was on the track, when he looked up and the train was about twenty-five feet from the bus, and the impact was almost immediately thereafter; that he holloed to the driver warning him of the approaching train, but it was too late for the driver to act. He testified positively that when he looked up and saw the train the bell was not ringing nor was the whistle blowing.

Appellant's engineer operating the engine pulling the train testified that he blew the regular road crossing signal for this crossing when a half mile away, that he then started the bell to ringing with an automatic air ringer with which it was equipped, and that it continued to ring until after the collision occurred and the train stopped; that the train was running about twenty-five miles an hour; that he was in his usual place on the west side of the cab keeping a lookout ahead; that the speed he was going was the usual speed of his train at that point; that he saw no object or obstruction at or near the highway crossing; that he saw nothing approaching the track until he was right at the crossing, when his fireman called his attention to the approaching bus, when he applied the air in emergency, and stopped his train in a distance just a little more than its length.

The fireman testified that he was on the east side of the cab at his usual place; that he saw the bus approaching the crossing when the train was about one hundred feet away; that the bus was moving at a slow rate of speed; that he thought it was going to stop for the train to pass, but that it failed to slow down but rather seemed to move faster; and he called to the engineer to look out; and then it was the bus moved up on the track in front of the train and was struck.

Two boys, Robillard and Boznick, testified that they were driving a wagon drawn by a mule on their way to the store at Landon, and, on approaching this crossing from the east side, they heard the train coming and saw it and stopped in the curve where the road turns at right angles to cross the railroad track and there awaited the passing of the train; that while so waiting the bus came up, passed around them and proceeded on to the crossing and was struck by the train.

The postmaster at Landon testified he was about seventy-five or one hundred feet north of the crossing at the mail crane that he had put the mail sack on the crane and was awaiting the passing of the train to pick up the Landon mail that would...