Illinois Cent. Gulf R. R. v. Stedman, 49270

• Citation: 344 So.2d 468
• Decision Date: 06 April 1977
• Docket Number: No. 49270,49270
• Court: United States State Supreme Court of Mississippi
• Parties: ILLINOIS CENTRAL GULF RAILROAD, a Delaware Corporation, and L. J. Madison v. Mrs. Lula B. STEDMAN, Administratrix of the Estate of Henry Clay Stedman, Deceased.

Page 468

344 So.2d 468

ILLINOIS CENTRAL GULF RAILROAD, a Delaware Corporation, and L. J. Madison v. Mrs. Lula B. STEDMAN, Administratrix of the Estate of Henry Clay Stedman, Deceased.

No. 49270.

Supreme Court of Mississippi.

April 6, 1977.

Gibbes, Graves, Mullins, Bullock & Ferris, Ernest W. Graves, Laurel, for appellants.

Heidelberg, Woodliff & Franks, Sam E. Scott, Pittman & Nobles, Jackson, Eugene C. Tullos, L. D. Pittman, Raleigh, for appellee.

Before INZER, SUGG and LEE, JJ.

INZER, Presiding Justice, for the Court:

This is an appeal by Illinois Central Gulf Railroad and L. J. Madison from a judgment of the Circuit Court of Smith County awarding appellee Mrs. Lula B. Stedman, administratrix of the estate of her deceased husband, Henry Clay Stedman, damages in the amount of $181,316 as a result of a truck-train collision.

Mrs. Stedman brought this suit in the Circuit Court of Smith County seeking to recover damages for the alleged wrongful death of her husband, Henry Clay Stedman. The accident resulting in the injury and death two days later of Mr. Stedman occurred on March 11, 1974, at about 4 p.m. at the southernmost railroad crossing in the Town of Sledge, Quitman County. The truck, owned by Ouitman County and driven by Stedman, was struck by a locomotive operated by L. J. Madison. The declaration charged three principal grounds of negligence: (1) The train was traveling at a high, dangerous and unlawful rate of speed in excess of thirty miles per hour in violation of Mississippi Code 1972 Annotated, Section 77-9-237. (2) The train crew failed to properly sound the bell and whistle for the distance, time and place as required by Section 77-9-225, and (3) The failure to erect flashing signals or warnings or to give special warning at the intersection where the accident occurred since the intersection was highly hazardous because of obstruction to vision.

The railroad and its engineer answered and denied the charges of negligence and alleged that the sole proximate cause of the collision was the negligence of Mr. Stedman in failing to stop, look and listen as required by statute.

The evidence is in conflict as to whether the whistle was blown or the bell was rung as required. The train crew testified that the whistle was blown and the bell rung as required and two other witnesses testified to the same effect. Three witnesses, who were in the vicinity of the crossing, testified that they did not hear the whistle or bell. It is contended that their testimony was negative testimony and not sufficient to make a jury issue on this question. However, when this testimony is taken in the light most favorable to the plaintiff, we are of the opinion that the trial court was correct in submitting this issue to the jury.

The testimony relative to the speed of the train is likewise in conflict. Madison testified that the train was traveling at about 35 miles per hour immediately prior to the time that he realized that the truck was not going to stop at the stop sign. He said he immediately took emergency procedures in an attempt to stop, but since the train was 115-120 feet from the crossing he was unable to stop. The report of the accident made by the railroad to the Public Service Commission placed the speed of the train at 35 miles per hour. The other crew members placed its speed at from 30 to 35 miles per hour. Other witnesses placed the speed at 40 to 45 miles per hour. The court, over the objection of the defendant, granted at the request of plaintiff, the following instruction:

The court instructs the jury that the statutory speed limit for the train through the Town of Sledge was 30 miles per hour; and if you believe from a preponderance of the credible evidence in this case that the train was traveling at a speed of more than 30 miles per hour and if you further believe from the preponderance of the evidence that the speed of the train was a proximate cause of the accident, then you should return a verdict for the plaintiff.

The giving of this instruction was error and under the circumstances of this case was highly prejudicial. As we view the case, it is a close one on liability. The proof is undisputed that Mr. Stedman drove his truck upon the crossing in front of the approaching train without over stopping and apparently without looking. The jury could have found from the evidence in this case that the sole proximate cause of the accident was the negligence of Mr. Stedman. However, this instruction told the jury that if the train was traveling in excess of thirty miles per hour, that the railroad was violating the law and if this was a proximate cause of the accident, then they were bound to find for the plaintiff. We have heretofore held that Section 77-9-237, Mississippi Code 1972 Annotated, applies only to steam locomotives and has no application to locomotives operated by diesel or electricity. In New Orleans and N.E. RR v. Burney, 248 Miss. 290, 159 So.2d 85 (1963), we stated:

Insofar as the speed of the train constituting negligence because of its excessive rate is concerned, we do not agree with appellee that Sec. 7782, Miss. Code of 1942, controls. This section was written before there were any diesel electric trains in Mississippi and applied expressly to trains operated by the dangerous agency of steam. The prohibitions in this section relate only to steam powered trains, and the care which the...