Illinois Central Gulf R. Co. v. Yates

• Decision Date: 18 May 1976
• Docket Number: No. 48632,48632
• Citation: 334 So.2d 364
• Parties: ILLINOIS CENTRAL GULF RAILROAD COMPANY and Ricky Dowdy v. Mrs. Buford YATES.
• Court: Mississippi Supreme Court

Page 364

334 So.2d 364

ILLINOIS CENTRAL GULF RAILROAD COMPANY and Ricky Dowdy v. Mrs. Buford YATES.

No. 48632.

Supreme Court of Mississippi.

May 18, 1976.

Rehearing Denied July 13, 1976.

Wells, Wells, Marble & Hurst, John E. Hughes, III, Jackson, for appellants.

Eugene C. Tullos, Raleigh, William D. Evans, Jackson, for appellee.

Before PATTERSON, SMITH and BROOM, JJ.

PATTERSON, Presiding Justice, for the Court:

Mrs. Buford Yates and her children brought suit in the Circuit Court of Smith County seeking damages for the loss of Buford Yates, their husband and father. His death resulted from a collision between the truck he was driving and a railroad locomotive. A verdict of $250,000 was awarded the plaintiffs by the jury from which the railroad company and Ricky Dowdy, the locomotive engineer, appeal.

The first error urged for reversal is that the overwhelming weight of the evidence establishes that the train's approach to the crossing where the collision occurred was preceded by warning signals in accord with the statute, leaving no factual issue for the jury to decide. To the contrary, the appellees urge the failure of the defendants to blow the locomotive's whistle and ring its bell in approaching the crossing, upon which they base liability, was supported by evidence sufficient to submit to the jury. The issue, therefore, is one of fact.

The defendant's duty to give warning of a train's approach to a crossing is set forth in Mississippi Code Annotated section 7777 (1942) (now Section 77-9-225)), which provides in part:

Every railroad company shall cause each locomotive engine run by it to be provided with a bell . . . and with a whistle . . . which can be heard distinctly at a distance of three hundred yards, and shall cause the bell to be rung or the whistle or horn to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any public highway or municipal street. The bell shall be kept ringing continuously or the whistle or horn shall be kept blowing at repeated intervals until said crossing is passed.

A review of the testimony in some detail is necessary to a determination of whether there is any evidence to support the plaintiffs' theory of liability arising from the appellants' failure to give the crossing warning signals.

On August 18, 1973, at 6:30 a.m., an Illinois Central Gulf Railroad Company train left Cleveland, Mississippi, destined for Memphis, Tennessee. Prior to departure the air brakes of the train were examined and found to be in good working condition. The train did not stop on its northerly journey until it collided with the truck operated by Buford Yates in Shelby, Mississippi, some fifteen miles north of Cleveland.

U.S. Highway 61 and the tracks of the railroad run north and south at the collision site. The highway is east of the railroad and parallels it without curve for a substantial distance sought of the crossing. The terrain is level, permitting an unobscured view of the tracks from the highway south of the crossing and at the crossing site. On the day of the accident the plaintiffs' decedent was driving north along U.S. Highway 61 to a water tower construction site in Shelby where he was to obtain a load of equipment. The site was west of the railroad and the highway paralleled it to the east. It was thus necessary for the truck to turn left from the highway onto the railroad crossing to reach its destination. As the truck and train proceeded on parallel courses in a northerly direction toward Shelby, the truck passed the train and turned westward into the crossing where it was struck by the appellant's locomotive. Yates was fatally injured and expired shortly after the collision.

Several witnesses testified for the locomotive engineer and the railroad company. Ricky Dowdy, the engineer, testified unequivocally that he blew the whistle and rang the bell beginning at the whistle post 900 feet south of the crossing. He explained that the bell rings continuously when activated and that he did not deactivate it until the locomotive had been brought to a stop subsequent to its impact with the truck. He also testified that he blew two long blasts of the whistle, several short blasts, and another long blast before the train reached the crossing near the water tower construction site. He did not observe the truck operated by Yates until after the accident as his vision to the east was blocked by the engine of the locomotive, his view being to the north along the tracks and to the west thereof.

Billy Barkley, the locomotive fireman, testified that he saw the truck as it moved northward along the highway east of the railroad track and that it passed the train. He estimated the truck's speed to be about forty or forty-five miles per hour and the speed of the train about thirty miles per hour. He also testified that when the train reached the whistle post, the engineer blew the whistle and rang the bell, giving warning of its approach to the crossing. After the truck passed the train, Barkley saw it turn left into the crossing and immediately notified the engineer who engaged the full braking power of the train, but it was too late to avoid colliding with the truck.

Robert Schnadelbach, a student of Delta State University, was traveling southward enroute to school on the occasion. While stopped at a traffic light in Shelby, he first saw the train and heard its whistle blow when it was about 300 yards south of the crossing. He continued his observance of the truck and train as they approached from the south and saw the truck turn left from the highway into the crossing without stopping where it was struck by the train's locomotive.

Charles Logan, a carpenter, testified that he was standing in front of Fava's Grocery Store in Shelby and saw the train and truck approaching from the south. He saw the train and heard the whistle blow when the locomotive was approximately a quarter of a mile south of the crossing. He also observed the truck turn directly into the crossing and into the path of the oncoming train.

Jim Jenkins was in front of his home in Shelby working on a school bus as the train approached. He heard the blasts of the train whistle and the bell clanging south of the crossing. He stated the whistle blew in the vicinity of a white house and pecan orchard south of the crossing. The exhibits depict the white house and orchard to be adjacent to the whistle post south of the crossing. He observed the truck enter the crossing without stopping before it was struck by the locomotive. At the time he was outside of the bus conversing with Reverend Giles who, according to Jenkins, could also have heard the whistle blow.

We note that each of these witnesses gave affirmative testimony that the train's whistle blew as it approached the crossing and were eye witnesses to the collision. The evidence most favorable to the appellees by each of their witnesses follows.

Michael Martin was a welder on the water tower being constructed in Shelby. At the time of the collision he was approximately 200 feet from the crossing with his back to it when his attention was attracted by the whistle blowing. He described it as follows:

Well, it was a strange whistle to me. It was almost a steady, you know, it wasn't no ordinary whistle. It was just a steady whistle like, you know, something to draw your attention, you know. That's what drew my attention was the-it was a strange whistle blow.

He stated the whistle blast and the collision occurred almost at the same time. He testified the morning was clear and there were no southward obstructions to the vision of a motorist entering the crossing from the highway on the east.

Walter McKay, a foreman of the company erecting the water tower, testified that he was facing the railroad talking to one of his men at the time of the accident. He stated:

I heard the train blow and about that time I heard the truck, I mean, I heard the crash.

Describing the impact, he said:

I just heard the whistle blow and about the same time I heard it hit the truck and looked up and seen the truck in the...