Maness v. Illinois Central R. Co.

• Decision Date: 18 December 1972
• Docket Number: No. 46922,46922
• Citation: 271 So.2d 418
• Parties: James MANESS et al. v. ILLINOIS CENTRAL RAILROAD COMPANY et al.
• Court: Mississippi Supreme Court

Page 418

271 So.2d 418

61 A.L.R.3d 1

James MANESS et al. v. ILLINOIS CENTRAL RAILROAD COMPANY et al.

No. 46922.

Supreme Court of Mississippi.

Dec. 18, 1972.

Rehearing Denied Jan. 15, 1973.

Prewitt & Braddock, Vicksburg, for appellants.

Dent, Ward, Martin & Terry, Vicksburg, Daniel, Coker, Horton, Bell & Dukes, Jackson, for appellees.

BROOM, Justice:

This is an appeal from the Circuit Court of Warren County, Mississippi. The suit was brought by the appellant, James Maness, father of Calvin Maness, deceased, under Mississippi Code 1942 Annotated section 1453 (Supp.1971) for the alleged wrongful death of the said deceased. Defendants to the suit were Illinois Central Railroad Company, Jack's Cookie Corporation, and Rayfield A. Luccasen, all three of whom are appellees. Consolidated and tried along with said suit was the suit of Paul Tice as plaintiff, one of appellants herein, for property damages to his truck which was driven by Calvin Maness. In the lower court a directed verdict was given in favor of Illinois Central Railroad Company, appellee. The jury returned a verdict in favor of the other two appellees, Jack's Cookie Corporation and Rayfield A. Lucassen. Now James Maness and Paul Tice appeal to this Court.

On October 2, 1969, late in the afternoon, before dark, Calvin Maness was killed in the accident in question. The accident occurred on U.S. Highway 61 in Issaquena County, approximately one-fourth mile south of the town of Valley Park, Mississippi. The highway and the railroad are approximately parallel and run in a generally north and south direction, and are adjacent to each other. Going north from the area of a trestle about a mile south of Valley Park, the distance separating the highway and railroad gradually diminishes. Grass approximately six to ten inches tall grows along the highway and railroad right-of-way. Ralph Frisby, a witness, resides in a house situated approximately one-fourth mile south of Valley Park and six hundred to seven hundred feet west of the railroad.

Several witnesses testified that they saw smoke and fire near the railroad trestle during the early part of the afternoon. A highway patrolman, Joe Braun, testified that at about 7:00 o'clock p.m. he saw where the fire had burned on the railroad right-of-way, and it was his opinion that the fire had started within thrity feet of the trestle and upon the railroad right-of-way. No eyewitness stated with certainty as to whether or not the fire originated on the railroad property. No one actually saw the fire originate; no one testified as to who or what ignited or caused the fire.

William Duchesne testified that he returned in the early afternoon to work in a filed west of the railroad. While en route, he observed a truck which he said was that of the appellee, Illinois Central Railroad Company. Said truck passed him and parked at the southeast corner of the field where he had been working. Duchesne stated that he observed the fire on the railroad right-of-way subsequent to the parking of the railroad truck. He did not recognize or identify anyone in or on the truck.

Apparently the fire progressively went in a northerly direction from the general area of the trestle to a point near to where the fatal highway accident occurred. A southwesterly wind blew the smoke from the railroad right-of-way across the adjacent highway, obscuring the vision of travelers upon the highway. Apparently the wind velocity and direction were not constant so that at intervals visibility was changing from zero to normal in daylight. Sometime between 5:00 and 6:00 o'clock p.m. a Goodyear tire truck was proceeding through the smoke on the highway when it was struck from the rear by the truck of the appellee, Jack's Cookie Corporation, being operated by another appellee, Rayfield A. Luccasen. According to the witness Frisby the cookie truck was traveling at approximately forty-five to fifty miles per hour when it struck the Goodyear tire truck, which in the impact was knocked approximately a hundred to a hundred and fifty feet off and to the west of the highway. The cookie truck remained upon said U.S. Highway 61, blocking the north and southbound lanes of traffic.

While the cookie truck remained on the highway, it was struck from the rear by a pickup truck being driven by Wendell Johnson who then moved his pickup, which was not disabled, off the highway, leaving the cookie truck still there. In this situation Calvin Maness came along the scene driving a bean truck owned by appellant Paul Tice. After the deceased had proceeded some fifty to seventy-five feet into the area enveloped by smoke, said bean truck collided with the cookie truck, killing the said Calvin Maness.

The testimony indicates that the appellee Luccasen, driver of the cookie truck, was not able to see after he entered the smoke on the highway. He did not apply his brakes nor did he turn on his lights. He did take his foot off the accelerator and thereby reduce his speed prior to entering the smoke. During the brief time, approximately five to ten minutes, from the moment the cookie truck struck the Goodyear truck until the fatal collision, the appellee Luccasen put out no flares nor warning signals and made no attempt to remove his truck from the highway. He stated that after the collision he was 'shocked' and thought he was trapped inside the truck for a time.

When the plaintiffs rested their case, the court entered a directed verdict for the appellee, Illinois Central Railroad Company, whose motion for such verdict charged in effect that the appellants (plaintiffs) had failed to show that the fire in question was started by any agent or employee of the railroad or that the railroad had knowledge that the fire was on the railroad right-of-way prior to the accident for sufficient time to have extinguished it. After the railroad made its motion for a directed verdict, appellants (before the court ruled on said motion) applied for leave to reopen their case for the purpose of introducing into evidence interrogatories propounded by plaintiffs to the railroad, and no doubt intended to include the written answers of the railroad previously filed in response thereto. The motion literally specified only the 'interrogatories.' The lower court refused to permit the appellants to reopen, and then granted the railroad a directed verdict.

The first assignment of error made by appellants in that the court erred in directing a verdict for the railroad when the appellants rested. Appellants contend that there was in the record ample testimony requiring that a jury should pass on whether or not the railroad was guilty of negligence either in starting the fire by act of its agents or employees, or, whether or not the fire was existing on the railroad right-of-way for sufficient time for the railroad to be charged with the duty of extinguishing the fire before the accident.

We find no merit in this assignment. No witness testified that any employee or agent of the railroad set the fire. Also, there is no substantial or credible evidence that any employee or agent of the railroad had knowledge of said fire for a sufficient period of time to be chargeable, in the exercise of reasonable care, with the duty of extinguishing the fire before the accident occurred.

This Court in a recent fire case, Gulf Oil Corporation v. Turner,235 So.2d 464 (Miss.1970), speaking through Gillespie, P. J., held that in determining whether a party is entitled to a directed verdict the court must view the evidence in the light most favorable to the party in whose favor the jury returned the verdict. We must consider as ture all evidence favorable to the successful party. All conflicts in the evidence are resolved in favor of the prevailing party. See also, involving smoke on a highway, the case of Butler v. Chrestman, 264 So.2d 812 (Miss.1972). A careful review of the record leads us to conclude that any thesis upon which the railroad could be held liable for negligently starting the fire or failing to extinguish it would have to be based upon surmise, conjecture and speculation. At the most, as reflected by the record before us, the evidence amounts to no more than a scintilla that the railroad is in any way connected with the fire, or had through any of its agents or employees knowledge of the fire for sufficient time to have extinguished it before the accident in which the deceased was killed. John Morrell & Co. v. Shultz, 208 So.2d 906 (Miss.1968). No witness testified who started the fire, or precisely just where it was started. To sustain a verdict the evidence must rise high enough that the cause of the fire may not rest on surmise, conjecture or speculation. 65A C.J.S. Negligence § 244(9) (1966).

In the previous 'fire cases' of Gulf Oil Corporation, supra, and Keith v. Yazoo & Mississippi Valley R.R., 168 Miss. 519, 151 So. 916 (1934), we held that a jury should determine whether or not the alleged tort feasor was guilty of negligence. In both said cases there was evidence that Gulf in one and the railroad in the other definitely set the fires in question.

The case of Berry v. Brunt, 252 Miss. 194, 200, 172 So.2d 398, 400-401 (1965) had this point involved. It was a 'fire' case in which the trial court entered a directed verdict for the defendant. On appeal this Court held that the directed verdict was properly entered, and, through Rodgers, J., said:

The question to be determined here is, after applying the foregoing rule in the trial court, was the evidence sufficient to to require an issue to be submitted to the to require an inssue to be submitted to the jury?

As a general rule, in order to establish an allegation of negligence based upon circumstances, inferences and acts of a defendant in the nature of admissions, the proof or circumstances shown must be such that they will take the case out of the realm of conjecture and place it within the field of a legitimate inference of liability. Alexander...