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

• Decision Date: 14 December 1931
• Docket Number: 29234
• Citation: 162 Miss. 392,138 So. 358
• Parties: NEW ORLEANS & N.E. R. Co. v. KELLER
• Court: Mississippi Supreme Court

138 So. 358

162 Miss. 392

NEW ORLEANS & N.E. R. Co. v. KELLER

No. 29234

Supreme Court of Mississippi

December 14, 1931

Division A

1 RAILROADS.

Truck driver driving over private crossing without stopping or looking for train visible for four miles and struck thereby held guilty of gross negligence.

2 RAILROADS.

Evidence upon to which base common-law liability, where passenger train struck truck driver at private crossing, held insufficient to raise jury question.

3 RAILROADS.

Railroad's duty to give signals at private crossing depends upon circumstances existing at particular time.

4. RAILROADS.

Proximity of gravel pit to railroad did not raise jury question whether there were peculiar circumstances requiring warning signals at private crossing.

5. RAILROADS.

Warning to person at private crossing is not necessary until it becomes evident that he will ignore and disregard entirely his own safety.

HON. J. Q. LANGSTON, Judge.

APPEAL from circuit court of Lamar county HON. J. Q. LANGSTON, Judge.

Action by Mrs. Carrie Mae McInnis Keller, administratrix, against the New Orleans & N.E. R. Co. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Stevens & Heidelberg, of Hattiesburg, for appellant.

The crossing in question was a private crossing and not a public crossing.

Gulf & Ship Island R. R. Company v. Adkinson, 117 Miss. 118, 77 So. 954; Warren County v. Mastronardi, 76 Miss. 273, 24 So. 199; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446, 38 So. 793; City of Columbus v. Payne, 115 Miss. 170, 124 So. 269; C. & G. Railroad Co. v. Burnside, 104 So. 701.

The working of the crossing in question by the Railroad Company did not give it the character of a public road. The Railroad Company is required to keep up private crossings, as well as public crossings.

Section 2169, Code of 1930.

Being a private and not a public crossing, the Mississippi Bell and Whistle Statute has no application.

Gulf & Ship Island R. R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954; 3 Elliott on Railroads, sec. 1636; Illinois Central Railroad Co. v. Mann, 141 Miss. 778; Columbus & G. Ry. Co. v. Duease, 142 Miss. 713, 108 So. 151; Yazoo & M. V. Ry. Co. v. Lucken, 137 Miss. 572, 102 So. 39.

At common law a railroad is bound to exercise reasonable care in the operation of its trains and to avoid injury to persons and animals at all crossings, private as well as public; and if by reason of peculiar or extraordinary circumstances surrounding a crossing and known to the trainmen, ordinary prudence would require an alarm or signal to be given by an approaching train, then its omission is negligence.

27 R. C. L. 1004; I. C. R. R. Co. v. Mann, 141 Miss. 778, 106 So. 7.

In the case of a public highway, the statute requires the giving of signals, regardless of whether persons are seen or not in a position of danger. In other words, under the statute it is the duty of the railroad company to give the signals on approaching a public crossing at all event, and, if a person is injured by reason of a failure to give such signals, the railroad company will be negligent as a matter of law. But in the case of a private crossing which people habitually travel, the duty of a railroad company to give signals would depend upon the circumstances existing at a particular time.

Yazoo & M. V. Ry. Co. v. Lucken, 137 Miss. 572, 102 So. 39.

Where an accident happened at a private crossing and because of the peculiar or extraordinary circumstances surrounding that crossing, it is for the jury to say whether or not a signal of any kind was required.

Columbus & G. Ry. Co. v. Duease, 142 Miss. 713, 108 So. 151.

The general rule that a railroad company is not required to give any signal on approaching a private crossing may not apply where there are peculiar circumstances.

Illinois Cent. Railroad Co. v. Dillon, 111 Miss. 520, 71 So. 809.

While there is some slight conflict in the authorities as to whether signals are required at private crossings, the decided weight of authority is that they are not ordinarily required unless the statute so provides.

A. & V. Ry. Co. v. McCoy, 105 Miss. 737, 63 So. 221.

There not being any reason for requiring the giving of signals and slackening of the speed of railroad trains in approaching the private way, as exists in respect to a public road, and as to require it to be done at every private crossing or opposite every dwelling house near the road would unnecessarily and seriously interfere with and impede the running of trains. It would be unreasonable to require it.

Johnson v. Louisville, etc., R. R. Co., 60 Am. & Eng. R. Cases 648; 3 Elliott on Contracts, sec. 1636.

In the absence of any statutory requirement there is no obligation upon the company to slacken the speed of its trains, 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.

3 Elliott on Railroads, sec. 1655.

Hall & Hall, of Columbia, for appellee.

A public crossing over the track of a railroad company can either result from a dedication of the ground used for the crossing, to the exclusive use of the traveling public, or it may result from a user by the public for a length of time sufficiently long to estop the railroad company from denying that it was so appropriated.

Adams v. Iron Cliff Co., 78 Mich. 271, 44 N.W. 270; 41 Am. & Eng. R. Cas. 414; Pittsburg, etc., R. Co. v. Dunn, 56 Penn. State 280; Webb v. Pollard, etc., R. Co., 57 Me. 117.

It is the duty of a railroad company, in the operation of its trains, to use ordinary care and prudence to prevent injury to the persons of those who may be travelling upon the public highways and have occasion to cross its tracks, whether the specific duty be prescribed by statute or not. And the fact that the statute may prescribe one precaution will not relieve the railroad company from adopting others, which may be dictated by common prudence, so as to safeguard the public using the crossings over its tracks.

White, Personal Injuries on Railroads, 1297, par. 877; Chicago, etc., R. Co. v. Perkins, 125 Ill. 127, 17 N.E. 1; Grand Truck R. Co. v. Ives, 144 U.S. 408.

The care and caution required of railroad companies in the operation of their trains is generally commensurate to the danger to persons incident to the use of crossings and in running trains through towns and cities and over public crossings, or in the vicinity of railroad stations, care and caution must be exercised commensurate with the risk of accidents at such places, and whether or not such care is exercised in a given case will generally be held to be a jury issue where the facts are conflicting.

Hicks v. Pac. R. Co., 64 Mo. 430, 17 Am. Ry. Rep. 273; Beaty v. New Haven, etc., R. Co., 107 Mass. 479; Webb v. Portland R. Co., 57 Me. 117; Hart v. Chicago, etc., R. Co., 56 Iowa 166, 9 N.W. 118; Macon, etc., R. Co. v. Davis, 18 Ga. 679.

The Legislature nor the railroad commission can arbitrarily determine in advance what shall constitute ordinary care or reasonable prudence in a railroad company, each action must stand upon its own merits, and the question is ordinarily one for the jury to determine.

Grand Truck Railway Company of Canada v. Albert Ives, Adm., 36 L.Ed. 485.

A peremptory instruction is proper only where there is no testimony tending to make the opposite party's case.

Strauss v. National Parlor Furniture Co., 76 Miss. 343, 24 So. 703.

Where the evidence is conflicting on an issue, it is proper to present it to the jury.

Sunflower Bank v. Pitts, 108 Miss. 380, 66 So. 811.

Hall & Hall, of Columbia, and Currie & Currie, of Hattiesburg, for appellee.

Where pedestrians continued to use a street, though it was discontinued and not used by vehicles, a plank having been placed so as to facilitate crossing the tracks of the defendant railroad company, the railroad company is charged with knowledge of the use of the crossing, and though one using it might be only a licensee, the company owed him the same duty it owes one crossing at a public crossing.

Illinois Central Railroad Co. v. Dillon, 71 So. 809.

The phrase "implied invitation" in its real value and significance, as derived from its application in the adjudged cases, imports knowledge by the defendant of the probable use by the plaintiff of the defendant's property so situated and conditioned as to be open to, and likely to be subject to, such use.

Allen v. Y. & M. V. R. R. Co., 71 So. 386.

An implied invitation to use dangerous premises, as distinguished from a mere licensee, arises when a benefit accrues to the owner from such use, or when the use is in the interest of both parties, or is connected with the owner's business.

Cleveland C. C. & St. L. Ry. Co. v. Powers, 88 N.E. 1073, 1077, 173 Ind. 105; Northwestern El. R. Co. v. O'Malley, 107 Ill.App. 599; Plummer v. Dill, 31 N.E. 128, 156 Mass. 426, 32 Am. St. Rep. 463; Dixon v. Swift, 56 A. 761, 98 Me. 207, 29 Cyc. 454.

Conceding that the deceased was guilty of gross negligence which contributed to his own death, it would not bar the appellee of the right of recovery.

Chap. 135, Laws of Miss. 1910; Yazoo & Mississippi Valley Railroad Co. v. Williams, 74 So. 835; Pennsylvania Co. v. Cole, 214 F. 948.

OPINION

McGowen, J.

Appellee's intestate was struck and instantly killed by a rapidly moving passenger train of the appellant at a private crossing on January 23, 1928. The appellee sought to prove that the crossing in question was a public crossing, but the court below gave a peremptory instruction that the crossing in...