Illinois Cent. R. Co. v. Perkins

• Decision Date: 18 April 1955
• Docket Number: No. 39487,39487
• Citation: 79 So.2d 459,223 Miss. 891
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY and Sam King v. Jamie D. PERKINS, Administrator of the Estate of W. C. Swinea, Deceased.
• Court: Mississippi Supreme Court

Page 459

79 So.2d 459

223 Miss. 891

ILLINOIS CENTRAL RAILROAD COMPANY and Sam King v. Jamie D. PERKINS, Administrator of the Estate of W. C Swinea, Deceased.

No. 39487.

Supreme Court of Mississippi.

April 18, 1955.

Ely B. Mitchell, Corinth, for appellants.

Orma R. Smith, Corinth, for appellee.

HOLMES, Justice.

This suit was brought in the Circuit Court of Alcorn County by Jamie D. Perkins, administrator of the estate of W. C. Swinea, deceased, against the Gulf, Mobile and Ohio Railroad Company, the Illinois Central Railroad Company, and Sam King, the engineer operating the engine of the Illinois Central Railroad Company on the occasion here involved. The suit sought to recover damages for the alleged wrongful death of the said W. C. Swinea, deceased, resulting from a collision between a Dodge pickup truck in which the deceased was riding and a through freight train operated by the Illinois Central Railroad Company.

The collision occurred on April 5, 1952, about 10:30 o'clock in the morning, in the Town of Selmer, Tennessee, at a crossing where the tracks of the Gulf, Mobile and Ohio Railroad Company cross at right angles Highways 45 and 65. The highway forms the main street of the town. The railroad tracks going over the crossing consist of three. The tracks run in a north and south direction and the highway runs in an east and west direction, and on the occasion of the collision, the deceased was approaching the crossing from the west in his truck. Approaching from the west, one first crosses a track designated in the record as track No. 3, and proceeding east, then crosses a second track, designated in the record as track No. 2, and continuing east, then crosses a third track, or the main line track, designated in the record as track No. 1. The distance from the center of track No. 1 to track No. 2 is 16 feet. The center of track No. 3 is 53 feet from the center of track No. 2. The total distance from the center of the main line track, or track No. 1, to the center of track No. 3 is 69 feet. The rails are 4 feet 8 inches apart. Tracks Nos. 2 and 3 are house tracks, or passing tracks. As the result of a collision at this crossing, the deceased, W. C. Swinea, was killed and his truck was practically demolished. The impact of the collision between the truck and the train was so great that the motor was knocked out of the truck and hurled through the air, and the deceased was likewise knocked from his truck and instantly killed.

The declaration predicated liability upon the alleged violation of common law duties by the defendants, and also the alleged violation of statutory duties by the defendants, Illinois Central Railroad Company and Sam King, its engineer. As violations of common law duties, it was alleged that the Gulf, Mobile and Ohio Railroad Company permitted the crossing to become a dangerous crossing in that it permitted cars to be parked along the side tracks obstructing the view of those in vehicular traffic, and in addition thereto, the signal lights were inadequate to properly notify vehicular traffic of trains approaching the crossing. By arrangement between the Gulf, Mobile and Ohio Railroad Company and the Illinois Central Railroad Company, the latter was granted trackage rights, pursuant to which it operated its through freight trains over the main track which traversed the crossing in question. The declaration charged that the Illinois Central Railroad Company and its engineer knew, or should have known, that the crossing was a dangerous crossing due to the fact that railroad cars were parked along the side tracks so as to obstruct the view of approaching trains on the main line track, and due to the fact that signal lights were inadequate to properly notify vehicular traffic, and notwithstanding this knowledge, the Illinois Central Railroad Company and it engineer, Sam King, ran its train over and across said crossing at a highly reckless and dangerous rate of speed. The declaration further charged the violation by the said Illinois Central Railroad Company and its engineer, Sam King, of statutory duties under certain precautionary statutes of the State of Tennessee.

The suit was brought in the name of the administrator of the deceased for the use and benefit of six adult children who survived the deceased, and sought damages for the death of the deceased and for the destruction of the deceased's pickup truck, and for his funeral expenses. His funeral expenses, according to the undisputed evidence amounted to $467.75. The value of the truck, according to the undisputed evidence, was between $350 and $400. After the wreck, the administrator sold the salvage from the truck for $15.

Upon the trial of the case and at the close of the evidence for the plaintiff, the defendants made a motion to exclude the evidence and direct a verdict for the defendants. This motion was overruled and the defendants then introduced evidence in their own behalf. Upon the conclusion of all of the evidence, the appellant, over the objection of the defendants, was permitted to amend his declaration so as to delete therefrom a demand for damages for the loss of society and companionship, and to insert therein a demand for damages for the pecuniary value of the life of the deceased. At the close of all of the evidence, the case was submitted to the jury solely on the question as to whether or not the defendants, Illinois Central Railroad Company and Sam King, had complied with the precautionary statutes of Tennessee with reference to the sounding of the whistle and bell by trains coming into a town or city and with reference to whether or not the said defendants had maintained a proper lookout in approaching the crossing as required by the statutes of Tennessee. No issue was submitted to the jury which authorized the jury to return a verdict against the Gulf, Mobile and Ohio Railroad Company. The only defendants as against whom the jury was authorized under the evidence and the instructions of the court to return a verdict were the defendants, Illinois Central Railroad Company and Sam King. The verdict returned by the jury was as follows: 'We the jury find for the plaintiff and assess his damages at $2,000.' On this verdict the court entered a judgment against the Illinois Central Railroad Company and Sam King. No judgment was entered against Gulf, Mobile and Ohio Railroad Company, and there is no appeal by the Gulf, Mobile and Ohio Railroad Company. From the judgment entered, the defendants, Illinois Central Railroad Company and Sam King, prosecute this appeal.

The deceased was, at the time of his death, 74 years old and in good health. He had a life expectancy of 7.23 years. He left surviving him six adult children. He was engaged in farming and had an income from his farm of $2,000 per year. The elements of damages which the jury was authorized to take into consideration in the event it found for the plaintiff were the pecuniary value of deceased's life, his funeral expenses, and property loss. The jury was expressly instructed that it could not consider as an element of damages the loss of society and companionship which the children of the deceased suffered by reason of his death. The elements of damages so authorized under the court's instructions were proper. Bennett v. U. S., D.C., 94 F.Supp. 6; Dixie Greyhound Lines v. Woodall, 6 Cir., 188 F.2d 535.

The collision here involved, having occurred in Tennessee, this suit is controlled by the statutes of Tennessee, and the construction of these statutes as placed upon them by the courts of Tennessee. Turner v. Southern Ry. Co., 112 Miss. 359, 73 So. 62.

This brings into review the following statutes as set forth in Williams' Tennessee Code, Anno. (1934).

Section 2628, Subsection (3): 'On approaching a city or town, the bell or whistle shall be sounded when the train is at the distance of one mile, and at short intervals till it reaches its depot or station; and on leaving a town or city, the bill or whistle shall be sounded when the train starts, and at intervals till it has left the corporate limits.'

Section 2628, Subsection (4): 'Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident.'

Section 2629: 'Every railroad company that fails to observe the above precautions, or cause them to be observed by its agents and servants, shall be responsible for all damages to person or property occasioned by, or resulting from, any accident or collision that may occur.'

Section 2630: 'No railroad company that observes, or causes to be observed, these precautions shall be responsible for any damage done to person or property on its road. The burden of proof that it has observed said precautions shall be upon the company.'

Subsection (3) of said Section 2628 providing that on approaching a city or town the bell or whistle shall be sounded when the train is at the distance of one mile, and at short intervals until it reaches the depot or station, has been construed by the Tennessee courts to mean a distance of one mile from the corporate limits of the town and not a distance of one mile from the depot or station. Illinois Central Railroad Company v. Davis, 104 Tenn. 442, 58 S.W. 296; Webb v. East Tennessee, V. & G. Railroad Co., 88 Tenn. 119, 124, 12 S.W. 428.

The construction placed upon the foregoing precautionary statutes of Tennessee by the Supreme Court of Tennessee is reviewed in the case of Majestic v. Louisville & N. R. Co., 6 Cir., 147 F.2d 621, 624, as follows:

'The Tennessee Supreme Court has construed the statute to mean that every Railroad Company failing to observe its requirements shall be responsible for all damages to persons or property occasioned by or...