New Orleans & N. E. R. Co. v. Burney

• Citation: 159 So.2d 85,248 Miss. 290
• Decision Date: 16 December 1963
• Docket Number: No. 42793,42793
• Court: United States State Supreme Court of Mississippi
• Parties: NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY v. George BURNEY.

Page 85

159 So.2d 85

248 Miss. 290

NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY v. George BURNEY.

No. 42793.

Supreme Court of Mississippi.

Dec. 16, 1963.

M. M. Roberts, Hattiesburg, for appellant.

William E. Andrews, Jr., Purvis, Stone D. Barefield, Hattiesburg, for appellee.

BRADY, Justice:

This is an appeal from the Circuit Court of Lamar County, Mississippi, in which the appellee, George Burney, was awarded a judgment of $4,500 on account of personal injuries he received on December 5, 1962, when he was traveling in a westerly direction in the Town of Purvis in said County and was struck by the engine of a south-bound freight train of the appellant railroad when he endeavored to pass from the east side of said railroad tracks over State Highway 589, which is a part of Ohio Avenue within the corporate limits of the Town of Purvis, and he sustained serious and permanent injuries. From this judgment appellant prosecutes this appeal.

In his declaration appellee set up six grounds of negligence, which were: (1) The failure of defendant, hereinafter called appellant, to give the statutory signals and warnings; (2) the failure to exercise reasonable care to stop the locomotive so there would not have been a collision; (3) the speed of the train was in excess of thirty miles per hour in violation of Sec. 7782, Miss.Code of 1942; (4) appellant failed to erect interlocking or other safety devices or barricades when operating its train at a speed in excess of thirty miles per hour without stopping; (5) in failing to remove an obstruction of an embankment on the railroad right-of-way which obstructed the view of traffic and prevented appellee from seeing the locomotive when traveling south on the east side of the Town of Purvis and on appellant's right-of-way; and (6) in traveling and colliding with appellee at an excessive and unlawful rate of speed in the said Town of Purvis crossing.

Appellant denied each and every allegation of the declaration of appellee, which, in substance, was that State Highway 589, or Ohio Avenue in the Town of Purvis, was not a heavily traveled crossing where it goes over appellant's railroad tracks; that one traveling from the east toward the west on Ohio Avenue or State Highway 589 has the view unobstructed by an embankment, and denied that there is an embankment obstructing the visibility of the public and of the appellee on the occasion complained of.

Appellant admitted the requirements of Sec. 7777, Miss.Code of 1942, but denied that it had failed to comply with all the terms of said section, and that it was guilty of any negligence which caused or contributed to the accident, in that it did have a bell of at least thirty pounds weight, it did have a horn or whistle which could be heard distinctly at a distance of 300 yards, and that the whistle was blown and the bell was rung continuously as required by said section.

Appellant further denied that it was the duty and obligation of appellant to remove an alleged obstruction by way of an embankment on the easterly side of said railroad tracks and north of the street on which appellee was traveling.

After denying all the material allegations of the appellee's declaration, then by way of affirmative defense, the appellant charged that it did all which could possibly have been required of it and was free from any negligence, and, further, that the failure of appellee to stop, look and listen for the moving train, his failure to heed the warning of the electric blinking lights which had been put at the crossing by appellant, the failure of appellee to comply with the Mississippi Law stop sign requirement were the sole and proximate causes of the injuries sustained by appellee on account of the collision with appellant's diesel engine.

There was no motion for a new trial filed in this case after the verdict of the jury and the judgment in the sum of $4,500 was entered. But appellant did file a motion requesting the court to set aside the jury verdict and judgment and to enter judgment for appellant, notwithstanding the verdict of the jury, because under the law and facts appellant was entitled to judgment against appellee and the appellee is entitled to recover nothing from appellant. This motion was overruled. Thereupon the appellant perfected this appeal.

Appellant assigns but one error in this cause, which is: 'The appellant was entitled to a judgment as a matter of law, there being no believable evidence to support a verdict and judgment.'

It is to be noticed that this case is unique and differs somewhat from the usual appealed case in that there are no objections to any instructions granted appellee. There is no charge that the verdict is against the great overwhelming weight of the testimony, though the assignment of error implies this, or that the verdict of the jury was influenced by bias and prejudice; that there is no contention that a motion for a new trial should have been granted appellant on account of testimony or evidence which was improperly admitted over objection of appellant. In short, the appellant's contention is simply that the evidence offered by appellee is insufficient to support a verdict and judgment showing that appellant was guilty of any negligence as set forth in the declaration of appellee which would entitle appellee to a judgment against appellant. This assignment of error, therefore, requires the Court to review carefully and to determine whether or not the testimony offered by appellee is sufficient to establish that degree of negligence on the part of appellant which would justify submission of factual issues to the jury and the verdict and judgment obtained by appellee in the court below.

The testimony of all witnesses for the appellee, therefore, must be reviewed insofar as it bears upon the questions of negligence presented under the pleadings. Testimony in this case does disclose that there are some undisputed facts, as follows: State Highway 589, also known as Ohio Avenue, crosses appellant's tracks in the center of the Town of Purvis, Mississippi; said railroad tracks and right-of-way divide the business district of the Town of Purvis into two parts, one lying east of the railroad and the other to the west; said Ohio Avenue runs generally east and west. Appellee was driving his automobile on the morning of December 5, 1962, at approximately 8:10 A.M., in a westerly direction, going slightly down grade as he approached the tracks of appellant, which tracks run approximately north and south. It is undisputed that there is a Mississippi Law Stop Sign situated on the right-of-way 58 feet to the east of the main line tracks of appellant. There are three tracks of appellant situated in the crossing, one being the main line, a by-pass track, and a switching track. The depot is south of the street crossing and west of the main line track. It is undisputed that there was an automatic electric bell-light signal which was making its usual ringing sound and flashing the red blinking lights. It is undisputed that the locomotive of the appellant was equipped with a bell of at least 30 pounds weight and a whistle or horn which could be heard at least 300 years. It is undisputed that the car which appellee was driving was struck on the right rear side just behind the right rear door and was carried toward the south by the impact with the locomotive of the appellant; that appellee sustained the injuries complained of in the declaration. There is no dispute as to his hospital bills in the sum of $548.25 for injuries to his body, or the bill for $247.00 for medical attention given to his teeth, or as to his nursing bill, his indebtedness to the Blood Bank of the Hattiesburg Clinical Society, his indebtedness to Dr. Fred V. Hill and Dr. E. G. Duck, or that his injuries are serious and permanent. There is no contest of the allegations of appellant that the locomotive was properly equipped in compliance with statutory regulations.

By mutual agreement, both appellee and appellant introduced photographs illustrative of the place where the accident occurred and to establish their contentions with reference to the dangers of the situation there. Appellee introduced five photographs, found on pages 19A through 19E of the record. Number 5 on page 19E is a picture of the car of appellee and was taken from the front of the car as it was situated on the right-of-way of appellant at the crossing. Number 4 on 19D shows the motor of the appellee's automobile as it rested on appellant's right-of-way. Number 3 on page 19C shows the right side of the automobile and apparently the point of impact, towit, just behind the right door. This is a two-door Chevrolet Corvair, 1962 model. Number 2 on page 19B shows a close-up of 19C. Number 1 on page 19A shows a portion of the main line of appellant railroad, the camera apparently facing southeast, and Ohio Avenue on which appellee was traveling just before he was struck. The section of railroad track disclosed by this photograph is apparently that portion just immediately north of the corssing of Ohio Avenue with the tracks of appellant.

By agreement appellant introduced 7 photographs, numbers 20A through 20G. Numbers 20A and 20B show two tracks, the main line and the by-pass, and a section of the track north of the Ohio Avenue crossing. The exact distance the camera was from the west rail of the by-pass track is not reflected but it appears that it was on the north edge of Ohio Avenue looking northwest. It shows the visibility to the north from the east approach of Ohio Avenue before crossing the tracks of appellant. Apparently these pictures were taken some distance between 10 and 58 feet from the railroad east tracks, the east track being the main line on which appellant's train was running on the occasion.

Number 20C, looking more toward the west, reveals the railroad crossing, the automatic flashing signal and alarm. Number 20D shows about the same as 20C...