Mississippi Export R. Co. v. Summers

• Decision Date: 18 January 1943
• Docket Number: 35214.
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI EXPORT R. CO. v. SUMMERS et al.

11 So.2d 429

194 Miss. 179

MISSISSIPPI EXPORT R. CO. v. SUMMERS et al.

No. 35214.

Supreme Court of Mississippi

January 18, 1943

Suggestion of Error Overruled Feb. 15, 1943.

See 11 So.2d 905.

Welch & Cooper and Hannah, Simrall & Foote, all of Laurel for appellant.

Currie & Currie, of Hattiesburg, and C. C. Smith, of Richton for appellee.

ANDERSON Presiding Justice.

The appellees, the wife and children of Seth Summers, brought this action in the Circuit Court of Perry County against appellant, Mississippi Export Railroad Company, and Les Jennings to recover damages for the alleged wrongful death of the husband and father. There was a trial resulting in a verdict and judgment of $27,000, from which judgment the Railroad Company alone appeals. The principal ground assigned and argued for reversal is that the defendants were entitled to a directed verdict which was requested by them and refused. We have reached the conclusion that they were entitled to it upon the following considerations: Jennings was engaged in transporting, by truck, gravel to the City of Pascagoula. He had employed the deceased Summers to drive the truck. On the morning of the 24th of March, 1941, Summers while so engaged, on his trip to Pascagoula, approached the crossing of Highway 63 over the tracks of the railroad company. The crossing was blocked by a railroad box car; he ran into it and was killed. The ground relied on for recovery against the railroad company was that although the sun was about an hour high there was a fog so dense that a driver of an automobile complying with the law in all respects was unable to see more than a few feet ahead of him, and that notwithstanding the car had been on the crossing more than five minutes its presence there was unguarded by lights or otherwise; that the result was Summers ran into the box car without being able to see it in time to stop. The ground for recovery against his employer Jennings was that the former required him to haul from five to seven tons of gravel in a one and one-half ton truck, making the brakes ineffective which resulted in part in his running into the box car. The evidence showed that the railroad company was engaged in switching operations and in doing so had blocked the crossing probably for eight or ten minutes. And Summers was familiar with the crossing. Taking the evidence as a whole it was sufficient to establish liability on the part of both defendants provided the law was with the plaintiffs.

On the authority of Gulf, M. & N. R. Co. v. Holifield, 152 Miss 674, 120 So. 750; Gulf, M. & N. R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Spillman v. Gulf, & S. I. R. Co. 173 Miss. 725, 160 So. 445; Gulf, M. & N. R. Co. v. Addkison, 189 Miss. 301, 194 So. 593; Summerford v. Illinois C. R. Co., Miss., 196 So. 264, a railroad company may leave its train, or any part of it, standing over a public crossing, night or day, and whether light or dark, without any light or warning of any kind to...