Spilman v. Gulf & S. I. R. Co.

• Decision Date: 30 September 1935
• Docket Number: 31803
• Citation: 173 Miss. 725,163 So. 445
• Parties: SPILMAN v. GULF & S. I. R. Co
• Court: Mississippi Supreme Court

163 So. 445

173 Miss. 725

SPILMAN v. GULF & S. I. R. Co

No. 31803

Supreme Court of Mississippi

September 30, 1935

Division B

1 RAILROADS.

Under statute requiring locomotive to sound warning signal at public crossing until crossing is passed, no duty is imposed to give signal warning so that it may be heard for greater distance than three hundred yards from crossing and crossing is "passed" when it has become entirely occupied by train, whereupon obligation to continue signals no longer exists (Code 1930, section 6125).

2 RAILROADS. Occupancy of entire crossing by railroad train is "sufficient" warning within itself of presence of cars, including flat cars, on crossing, and statutory duty to sound signals no longer exists (Code 1930, section 6125).

"Sufficient" means that nothing else is required.

3. RAILROADS. In absence of "peculiar enrironment," railroad had no duty to give warning upon or at crossing over which flat cars were passing in addition to signals required by statute (Code 1930, section 6125).

"Peculiar environment" within rule regarding signals which railroad is required to give to warn of presence of cars on crossing means peculiar conditions of hazard which reasonable prudence should have reasonably foreseen would likely lead to collision, notwithstanding ordinary care on part of driver of motor car approaching crossing.

4 RAILROADS.

In action against railroad for injuries which were sustained when plaintiff's automobile was driven against flat cars which were passing over public crossing. evidence of defendant's negligence held insufficient for jury.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county HON. W. A. WHITE, Judge.

Action by B. O. Spilman against the Gulf & Ship Island Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Mize, Thompson & Mize, of Gulfport, for appellant.

The railroad company did not lawfully occupy the highway. It failed to ring its bell or blow its whistle as required by section 6125 of the Code of 1930 which is mandatory, that every railroad company shall cause each locomotive engine run by it to be provided with a bell, etc., which can be heard distinctly for three hundred yards and shall cause the bell or whistle to be sounded continuously for a distance of three hundred yards from the place where the railroad crosses over the highway and the bell shall be kept ringing or the whistle kept blowing continuously until said crossing is passed.

Section 6128, Code of 1930, provides that it should be unlawful to occupy a crossing for a longer period than five minutes.

L. & N. R. R. Co. v. Durfee, 69 Miss. 439; A. & V. Ry. v. Anderson, 81 Miss. 587; Southern Ry. v. Floyd, 99 Miss. 519; I. C. Ry. v. Engle, 102 Miss. 878; Terry v. N. O. & G. N. R. R. Co., 103 Miss. 679; Jarrell v. Ry. Co., 109 Miss. 49; Owen v. Anderson, 119 Miss. 66.

The violation of a mandatory statute is negligence per se, and it is a question for the jury to determine whether or not such negligence proximately contributed to the injuries.

In the instant case it cannot be doubted for a moment that if these signals had been given that plaintiff would have heard them in ample time to have brought his car to a stop before striking the train because it is a matter of common knowledge that when one hears a train blowing its whistle it causes him to take extraordinary precautions until he finds where it is located and is a reasonable requirement in this day and time when the driver of an automobile has so many things to watch for.

Pascagoula Street Ry. Co. v. McEachren, 109 Miss. 380; Y. & M. V. Ry. v. Pittman, 153 So. 382; Simmons v. G. & S. I. R. R. Co., 117 So. 345; O. & S. I. R. R. Co. v. Simmons, 121 So. 144; A. & V. Ry. Co. v. McGee, 78 So. 296; I. C. Ry. v. Mann, 106 So. 7; N. O. & N. E. Ry. Co. v. Hegwood, 124 So. 66; City of Vicksburg v. Harralson, 101 So. 713; Bon Homie & H. S. Ry. Co. v. Ferguson, 134 So. 146; McWhorter v. Draughan, 98 So. 597.

In the present case the highway was wrongfully obstructed because the railroad company was violating the law when it failed to give the statutory signals.

Atlantic Coast Line Ry. Co. v. Jones, 123 So. 920.

If the railroad company had given the statutory signal then it would have occupied the highway lawfully, but since it failed to do that then it was a trespass.

Solomon v. Continental Baking Co., 160 So. 732; Southern Pacific Ry. v. Kauffman, 50 F.2d 159; Jarrett v. Wabash Ry. Co., 57 F.2d 669; Penn. Ry. Co. v. Fischer, 53 F.2d 1017; Jasper County Lbr. Co. v. McNeill, 76 F.2d 207; Lyon v. St. Louis Ry. Co., 6 Mo.App. 516; Miller v. Atlantic Coast Line Ry. Co., 140 S.C. 123, 138 S.E. 675; Todd v. Philadelphia Ry. Co., 201 Pa. 558, 51 A. 332; Evansville Ry. Co. v. Carbener, 113 Ind. 51, 14 N.E. 738.

The authorities are almost unanimous that where certain kinds of signals as the blowing of whistles is required by statute to be given, the railroad company can make no substitution therefor but must give the signal required by the statute.

52 C. J., 223-224 and 237.

E. C. Craig, of Chicago, Illinois, Burch, Minor & McKay, of Memphis, Tenn., and Gardner & Backstrom, of Gulfport, for appellee.

Where crossing is already occupied by train of cars, no liability can arise for failure to sound statutory signals as train approaches crossing.

McGlauflin v. Boston & Maine Railroad Co., 230 Mass. 431, 119 N.E. 955, L.R.A. 1918E, 790; Schmidt v. Chicago & Northwestern Ry. Co., 210 N.W. 370; Nadasky v. Public Service Railroad Co., 97 N. J. Law 400, 117 A. 478; Jones v. Texas & Pacific Railroad Co., 154 So. 768; Texas & N. O. R. Co. v. Stratton, 74 S.W.2d 741; Gulf, Mobile & Northern Railroad Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, Mobile & Northern Railroad Co. v. Kennard, 164 Miss. 380, 145 So. 110.

Where crossing is already occupied by train of cars, no statutory or common law duty to sound whistle or bell, station flagman on crossing, put out red light or give other warning of presence of train.

St. Louis-San Francisco Ry. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110; Gage v. Boston & Maine Railroad Co., 77 N.H. 289, 90 A. 855, L.R.A. 1915A, 363; Gilman v. Central Vermont Railway Co., 93 Vt. 340, 107 A. 122, 16 A.L.R. 1102; G. M. & N. R. Co. v. Holifield, 152 Miss. 674; Texas & New Orleans Railroad Co. v. Stratton, 74 S.W.2d 741, 746; Plummer v. Gulf, Mobile & Northern Railroad Co., 153 So. 322.

Train occupying crossing is sufficient warning of its presence.

52 C. J. 205, sec. 1795; Huntington v. Bangor & A. R. Co., 105 Me. 363, 74 A. 802; Southern Ry. Co. v. Lambert, 160 So. 262.

The plaintiff's own negligence was the sole proximate cause of accident.

Frazier v. Hull, 157 Miss. 303, 127 So. 775; Johnson v. L. & N. R. R. Co., 148 So. 822; Southern Railway Co. v. Lambert, 160 So. 262.

Argued orally by S. C. Mize, for appellant, and by Oscar Backstrom, for appellee.

OPINION

Griffith, J.

About four miles north of Gulfport there is a spur track of appellee railroad company which leads easterly from the main line towards and to some industrial plants served by this railroad spur line. State highway No. 49, paved with concrete in this area, runs north and south parallel with the main line of the railroad at this point, and about one hundred feet therefrom, and is straight and level for a distance of a quarter of a mile north from the point where it crosses the said spur track, and thence continues parallel with the railroad track for a considerable distance still further north. At 7:15 o'clock on the night of October 31, 1934 a locomotive of appellee was pushing a train of flat cars from the main line of the railroad and along this spur track, across the highway crossing aforesaid, and, when eight of the flat cars had entirely passed over the crossing, appellant, who was traveling south on the highway in an automobile, collided with the ninth of the flat cars then on the crossing, and was severely injured, for which injury he brought suit in two counts. It was dark at the time of...