New Orleans & Northeastern R. Co. v. Weary, 45090

• Decision Date: 23 December 1968
• Docket Number: No. 45090,45090
• Citation: 217 So.2d 274
• Parties: NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY and N. B. Slayton, Defendants/Appellants, v. J. V. WEARY, Plaintiff/Appellee.
• Court: Mississippi Supreme Court

Page 274

217 So.2d 274

NEW ORLEANS AND NORTHEASTERN RAILROAD COMPANY and N. B Slayton, Defendants/Appellants, v. J. V. WEARY, Plaintiff/Appellee.

No. 45090.

Supreme Court of Mississippi.

Dec. 23, 1968.

Rehearing Denied Jan. 20, 1969.

M. M. Roberts, Hattiesburg, for appellants.

Holmes & Dukes, Hattiesburg, John B. Clark, Daniel, Coker, Horton & Bell, Jackson, for appellee.

PATTERSON, Justice:

This suit originated in the Circuit Court of Forrest County. J. V. Weary, appellee, sought to recover damages against appellants, New Orleans and Northeastern Railroad and N. B. Slayton, a railroad engineer, for injuries incurred in a car-train collision in Hattiesburg. The case was tried before a jury and from a verdict for the plaintiff in the amount of $50,000 the defendants appeal.

The declaration filed by Weary alleged that the defendants were negligent in (1) maintaining a dangerous crossing, (2) failing to maintain a warning device at such crossing, (3) negligent operation of a train, (4) operating a train at a dangerous rate of speed and not keeping a lookout for persons on public roadway, (5) failure to sound a whistle, blow a horn or ring a bell at least 300 yards from the crossing, (6) failure to keep a flagman at the crossing, (7) failure to comply with city ordinances relating to keeping crossing free from weeds and trash and keeping crossing well lighted, and (8) failure to comply with a city ordinance relating to keeping crossings in good condition, and that such negligence was the proximate cause of injury. The defendants by their answer denied any negligence on their part.

The evidence reflects that on January 3, 1966, at about 4:00 p.m., J. V. Weary left his work because of rain and at the direction of his employer drove a fellow employee home. He was in his personal car and upon completion of this task was returning to his employer's place of business for further instructions when the accident happened. In returning, appellee was driving north on Eastside Avenue, parallel to the appellant's railroad track which lay some fifty to one hundred feet to the west. When he reached Scooba Street, he made a left-hand turn and moved west toward the railroad track at a speed of from fifteen to twenty miles per hour. Apparently unknown to the appellee a train was traveling in a northerly direction on the railroad at a speed of from forty-five to sixty miles per hour.

Testimony introduced by the defense showed that four men were riding in the locomotive of the train. The engineer was on the left side of the locomotive, which was the side opposite that from which Weary was approaching the crossing. His testimony was to the effect that he did not see Weary's automobile prior to the collision. The flagman, fireman, and the brakeman were on the right side of the locomotive and observed Weary as he approached the crossing. The brakeman stated that he thought Weary was going to stop, but both he and the other two men on the right side of the train testified that the plaintiff's car kept coming at a constant speed. The fireman warned the engineer to apply his emergency brakes when he realized that the oncoming car was not going to stop, which in his words was when '* * * we were right upon him * * *.' The engine struck the car in which Weary was riding just as it crossed the tracks and pushed it some fifty to sixty feet beyond the point of initial impact. The train, which included seven cars, one caboose, and the engine, did not stop until well past the crossing.

According to testimony, there was no signal or warning device at this crossing other than a 'Mississippi Law Stop' sign. Several of appellee's witnesses who were in the immediate vicinity, testified that the locomotive whistle was not blown nor was the bell rung to warn motorists of the approaching train. The engineer, flagman, fireman, and the brakeman all testified that the whistle was blown, the headlight was on, and the bell was ringing at least 1,000 feet before the train passed over the Scooba Street crossing The appellee, who received a brain injury as the result of the collision, testified that he could not remember whether he stopped before crossing the tracks, looked to see if a train was coming, or saw the train prior to the collision.

The record reflects that the western and southern visibility of motorists approaching Scooba Street crossing on Eastside Avenue was impaired by weeds growing along the tracks. The defense entered photographs taken a day or two after the accident depicting the condition of the crossing. These photographs tend to corroborate plaintiff's witnesses' testimony concerning the presence of such weeds.

Shortly after the accident appellee was treated by Dr. Frank E. Jones, a general practitioner, whose qualifications were admitted. He testified that as a result of the accident Weary was reduced to the mental age of a two- or three-year-old child. He further testified that appellee had a fifty percent permanent disability because of back injuries received in the accident. Weary was also treated by Dr. Azordegan who performed an operation on him for a ruptured disc. Dr. Azordegan testified that on January 24, 1967, appellee had a ten percent mental disability, but that his memory had gotten worse since that day. He attributed all of appellee's medical problems to the train collision though there is evidence that Weary had suffered previous injuries to his back which had required surgery.

Defendants moved for a directed verdict when the plaintiff rested and again at the end of all testimony. Their motions were overruled. The case was tried before a jury which returned a verdict of $50,000 for the plaintiff. The defendants then moved for a reduction in judgment or a new trial, but such motion was overruled.

In their first assignment of error appellants maintain that the court should have granted their motion or a directed verdict or peremptory instruction. In support of this assignment they argue that the accident was caused by the failure of the appellee to stop, look and listed prior to crossing the railroad tracks. They relegated negligence on the railroad's behalf to a secondary position and concluded that the negligence of the appellee was the sole and proximate cause of the accident.

The appellee did in fact breach a statutory duty when he entered upon the railroad crossing without first stopping to make sure that it was clear. Mississippi Code 1942 Annotated section 7776 (1956), Driver of motor vehicle to stop before crossing railroad track, states, among other things, the following:

* * * (I)n the trial of all actions to recover personal injury or property damages, sustained by any driver of such motor driven vehicles for collision of said vehicle and train in which action it may appear that the said driver may have violated any of the provisions hereof, the question of whether or not the said violation was the sole or approximate cause of the accident and injury shall be for the jury to determine. The violation of this section shall not of itself defeat recovery, and the question of negligence or the violation aforesaid shall be left to the jury; and the comparative negligence statutes and prima facie statute of this state shall apply in these cases as in other cases of negligence. (Emphasis added.)

The appellants' contention that the plaintiff should be precluded from recovering because of his failure to comply with this statute is not persuasive. Although the statute does require motorists to stop prior to reaching a crossing, it also specifies that a failure to do so does not necessarily defeat recovery and in fact states that negligence on the part of the driver is a question for the jury.

Under Mississippi Code 1942 Annotated section 7777 (1956) the engineer of the train was required to cause 'the bell to be rung or the whistle or horn to be blown at the distance of at least three hundred yards from the place where the railroad crosses over any public highway or municipal street * * *.' Appellants introduced testimony that the bell was rung and the horn was blown. However, there was credible testimony to the contrary, thus creating an issue of fact to be resolved by a jury. Appellants cite, however, in a support of their argument, several cases which hold generally that a motorist is precluded from recovery in a crossing accident when he fails to stop his automobile. An examination of these cases reveals that they differ factually from the present situation. These cases are distinguishable because they dealt with a factual circumstance wherein the motorist either saw the approaching train prior to the accident or the train was on the crossing, and therefore, the blowing of the horn or ringing of the bell could not alert the motorist to see that which he already observed or should have observed. We are faced here with the situation where the train was not on the crossing and therefore was not readily observable, nor was there any evidence that plaintiff saw the train prior to the collision.

It should be noted that where visual stimulation is present to warn a driver of a train's presence and the impending danger, and in response to such stimulus he does see it, the failure to blow a horn or ring a bell is of little significance. However, where there is no testimony that the driver of the automobile saw the train prior to the collision, the question of whether warning by sounding the bell or whistle was given and whether such would have alerted the motorist and would 'probably' have prevented the accident is of prime importance.

In regard to this question the Court stated in New Orleans & Northeastern Railroad Co. v. Ready, 238 Miss. 199, 203, 204, 118 So.2d 185, 187 (1960):

* * * Whether the bell on appellant's engine was ringing was in direct conflict, and it was the function of the jury to resolve this issue and determine whether appellant's employees failed to ring the bell and whether such...