Mobile & O. R. Co. v. Bryant

• Decision Date: 23 February 1931
• Docket Number: 29020
• Citation: 159 Miss. 528,132 So. 539
• Parties: MOBILE & O. R. CO. v. BRYANT
• Court: Mississippi Supreme Court

132 So. 539

159 Miss. 528

MOBILE & O. R. CO. v. BRYANT

No. 29020

Supreme Court of Mississippi

February 23, 1931

Division B

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE Judge.

Action by E. A. Bryant against the Mobile & Ohio Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, and the action dismissed.

Reversed and dismissed.

Carl Fox, of St. Louis, Mo., and Baskin, Wilbourn & Miller, of Meridian, for appellant.

The engineer in charge of the motor train was not required to keep a lookout for people in the highway approaching the crossing. If the engineer could have seen and if he did see the deceased approaching in a southerly direction the crossing in question on the road that was parallel to the main line, he had a right to assume (a) that she would observe the law and the stop sign that was immediately in her view and that she would stop her car and look and listen before going on the crossing, and (b) that since he had blown for the crossing and since the bell was ringing and since the train was on schedule time that anybody driving up to the crossing, or being near the crossing, or shortly wishing to use the crossing, were warned and notified of his approach and in a position to keep out of any danger.

M. &amp O. R. R. Co. v. Johnson, 126 So. 827.

When a railroad takes all necessary precautions and gives proper warnings to prevent strangers from being injured at crossings, it seems that a recovery cannot be based on the speed of the train, except in particular cases, as where the peril of the traveler is known to the employees of the company, or where other sounds are prevailing, as of a thunder storm, which may render the sound of the signals indistinguishable.

22 R. C. L., section 243, page 1012.

In the absence of any statutory requirement, there is no obligation upon the company to slacken the speed of its train, under ordinary circumstances at country crossings, and a high rate of speed may be perfectly proper at country crossings, although it might be considered negligence at a crossing in a populous city.

Elliot on Railroads (3 Ed.), section 1655, page 527.

The statute as to signalling at crossings not applying, the duty of the railroad was such only as it owed at common law. Such duty it fully discharged by giving timely and sufficient warnings of the approach of the train.

Hancock v. I. C. R. R. Co., 131 So. 83.

In the absence of legislation regulating the speed of railway trains in rural districts a railroad company has the right as between it and travellers on the highways to run its trains over country highway crossings at any speed it may choose, subject to the common law rule of reasonable care.

Pittsburgh v. Nichols, 130 N.E. 546; Partlow v. Illinois Central Railroad Company, 37 N.E. 663; Sutton v. Chicago, etc., Railroad Co., 73 N.W. 993.

To transport persons and property rapidly is the principal purpose of railroads. To require railroads to generally so reduce their speed at all grade crossings as to avoid collisions with persons who may carelessly or accidently be upon the crossing when a train was approaching would defeat to a great extent the purpose of the existence of railroads. To run trains over grade crossings at a rate of speed reasonably necessary for the accomplishment of the purpose of railroads is always attended with dangers. When using its trains for proper railroad purposes it is generally the right of a railroad company, in the absence of legislative restrictions, to propel them over highway crossings in the way in which they are usually and reasonably run.

Freedman v. N.Y. & N. H. R. R. Co., 71 A. 901.

In this particular case there was no negligence rendering the railroad liable at all, and, the court can and should say that in this case under its facts that the sole cause of the accident was the gross negligence of the deceased.

B. & O. R. Co. v. Dora Goodman, Admx., 275 U.S. 65, 72 L.Ed. 167.

Reily & Parker, of Meridian, for appellee.

Regardless of the Mississippi statute the railroad company's duty under the common law was to use reasonable care in driving trains across a public highway.

I. C. Railroad Company v. Mann, 106 So. 7; Gulf Mobile & Northern Railroad Co. v. Hudson, 107 So. 369; I. C. Railroad Company v. Williams, 110 So. 510.

The Railroad Company was under the duty to keep a proper lookout.

Railroad Company v. Williams, 110 So. 510; Hinds v. Moore, 81 So. 1; Mobile & Ohio R. Co. v. Johnson, 127 So. 827.

Where warning signals are given, but the speed of the train is such as to render them useless such speed is negligence. This is particularly true when the sound is obstructed by wind and other noises and when intervening obstructions prevent those who are approaching the railroad from seeing coming train.

22 R. C. L., page 1012, section 243.

Under the rule of the common law that a railroad company is required to exercise its franchise with due regard to the safety of its passengers and such persons as may travel on a highway crossing railroad tracks, it is the duty of a railroad company in establishing the rate of speed at which its train may be run, to exercise due regard not only to the safety of passengers but also to all persons in the exercise of ordinary care traveling on a highway across its tracks.

33 Cyc., page 971.

It is negligence to run a train in the nighttime at such a speed as will make it impossible, by the use of ordinary means and appliance to stop the train within the distance in which the obstructions upon the track can be seen by the aid of the headlight of the engine. The application of this rule would seem to require the speed of the train to be such so a stop could be made if an object should be observed on the track at a place where such object had a right to be, such as a public crossing.

Nixon v. I. C. R. R. Co., 60 So. 566; Frazier v. Hull, 127 So. 770; St. Louis & S. F. R. R. Co. v. Moore, 58 So. 471.

Where no statutory signals are required, it is a question for the jury as to whether or not any warning is necessary, and if so what warning.

I. C. R. R. Co. v. Mann, 106 So. 7.

Argued orally by J. C. Wilbourn and R. E. Wilbourn, for appellant, and by Marion W. Reily, for appellee.

OPINION

Griffith, J.

On the 27th day of September, 1929, the wife of appellee was driving south in an automobile and along a road or street in the unincorporated village of Lauderdale, which said street runs parallel with, and on the east side of, the railroad track of appellant at a distance generally of slightly less than fifty feet. When the said wife reached a point one thousand fifty-five feet south of the depot, she turned to her right and with little, if any, slackening of speed, she suddenly drove upon the railroad track at a village dirt road crossing, and was there struck and killed by appellant's north-bound mail, express, and passenger train. The train at the time was running at the rate, usual at that point, of about twenty-five miles an hour and was exactly on time according to a schedule that had been used by this particular train for three years. The locomotive was a combination gas and electric machine and was equipped with an air whistle and a forty-pound automatic bell, and was being operated by an engineer of long and competent experience. The whistle had been sounded for the station and for all crossings, and according to the overwhelming weight of the evidence the bell was and had been continuously ringing for the distance required by statute of steam locomotives. The day was clear and the accident happened at 9:04 A. M. The unfortunate lady had lived for some time in the...