Summerford v. Illinois Cent. R. Co.

• Decision Date: 27 May 1940
• Docket Number: 34172.
• Citation: 196 So. 264
• Court: Mississippi Supreme Court
• Parties: SUMMERFORD v. ILLINOIS CENT. R. CO.

196 So. 264

SUMMERFORD v. ILLINOIS CENT. R. CO.

No. 34172.

Supreme Court of Mississippi, Division B.

May 27, 1940

Appeal from Circuit Court, Monroe County; Claude F. Clayton, Judge.

" Not to be reported in State Reports."

Action by Oather Summerford against Illinois Central Railroad Company for damages sustained when plaintiff drove his truck into the side of a box car. From an adverse judgment, plaintiff appeals.

Affirmed.

J. M. Coleman and Paine & Paine, all of Aberdeen, for appellant.

D. W. Houston, Sr. & Jr., of Aberdeen, and Frank F. Roberson, Lucius E. Burch, Jr., and Clinton H. McKay, all of Memphis, Tenn., for appellee.

McGOWEN, Justice.

The appellant drove his truck into the side of a box car, while the train was standing motionless, and had been for four or five minutes, on its tracks across Commerce Street in Aberdeen, Mississippi. Commerce Street is a part of the Federal Highway, No. 45, on which there is much travel. The appellant was familiar with the highway and the railroad crossing. He had crossed it that day, and many times before. It was at night and raining. He was driving twenty or twenty-five miles an hour, and, although the city maintained a light at the crossing, which was burning, he claims that the fog and the contour of the highway obscured his vision so that he could not see the box car on the track until he was within twenty feet of it. Appellant contends that the peculiar circumstances entitled his case to go to the jury on the question of negligence on the part of the railroad company in that it did not have a flagman or warning of any kind at the crossing.

The court below gave a peremptory instruction for the railroad company, presumably under the authority of Gulf, M. & N. R. Co. v. Holifield, 152 Miss. 674, 120 So. 750. We think the Holifield case applies here. In addition, the following cases fully support the rule announced in the Holifield case: Gulf M. & N. R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; St. Louis-San Francisco R. Co. v. Guthrie, 216 Ala. 613, 114 So. 215, 56 A.L.R. 1110; and Spilman v. Gulf & S. I. R. Co., 173 Miss. 725, 163 So. 445. We do not think the facts of this case show negligence on the part of the railroad company.

Affirmed.