Underwood v. Illinois Cent. R. Co.

• Decision Date: 18 June 1953
• Docket Number: No. 14304.,14304.
• Citation: 205 F.2d 61
• Parties: UNDERWOOD et al. v. ILLINOIS CENT. R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

205 F.2d 61 (1953)

UNDERWOOD et al. v. ILLINOIS CENT. R. CO.

No. 14304.

United States Court of Appeals Fifth Circuit.

June 18, 1953.

Landman Teller, Vicksburg, Miss., Francis S. Bowling, Jackson, Miss., Fred C. Berger and Chas. F. Engle, Natchez, Miss., for appellants.

Burkett H. Martin and R. L. Dent, Vicksburg, Miss., Burch, Porter & Johnson, Memphis, Tenn., Dent, Ward & Martin, Vicksburg, Miss., for appellee.

Before HOLMES, STRUM and RIVES, Circuit Judges.

RIVES, Circuit Judge.

The railroad crossing accident in which the appellants were injured occurred at about 8:30 o'clock on the night of April 11, 1950, at what is known as the Selma crossing on U. S. Highway 61, about eight miles north of the city of Natchez, Mississippi. Just prior to the collision, the automobile driven by Murray, and in which Underwood was a passenger, was traveling in a southerly direction and the train had been traveling in a northerly direction. The extent of the traffic on the part of the railroad between Natchez and Harriston, a town about twenty-eight miles further north, was one freight train each twenty-four hours from Natchez to Harriston and return, with no passenger trains running on that part of the railroad. Both the highway and the railroad ran in a northerly and southerly direction. North of the crossing, the highway was on the west side of and almost parallel to the railroad until it got close to the crossing, when it made a left curve, went across the railroad, then a right curve and continued to go south. The highway was practically straight for a distance of 225 feet just north of the crossing, though the investigating officer testified that in his opinion a car coming around the curve would be only about 150 feet away from a train occupying the crossing when the automobile lights first shone on the train. At a point on the west side of the highway fifty-six feet north of the crossing was a sign reading "Stop, Mississippi Law", and at a point seven hundred and twenty feet north of the crossing was another sign reading "Railroad Crossing". At the point of the crossing there was a thirty-four degree angle between the railroad and the highway.

There is a side track on the east side of the main line of the railroad just south of the crossing, at such distance that the part of the main line between the highway and the switch will hold a locomotive and a railroad car. As the train proceeded northerly, the engineer brought it to a stop before reaching the crossing, uncoupled the engine, backed into the siding, and picked up a box car loaded with pulpwood. He then pulled out on the main line, backed in to recouple with his train, and had proceeded on northerly to a point where the collision occurred. The automobile ran into the eighth car of the sixteen car freight train.

There was no dispute as to the facts thus far stated. Under the evidence, the jury would have been authorized to find the following additional facts. The automobile, a new 1950 model Buick was in perfect condition, including its brakes, steering gear and lights. Murray was a good and careful driver. Murray had been on this particular section of the highway on one other occasion and Underwood had never before traveled this part of the highway. The automobile had been traveling at a speed of approximately fifty-five to sixty miles per hour with bright or driving lights on. Murray and Underwood each testified that he was awake and watching but denied seeing either of the warning signs. They both saw the train for the first time when the lights of their automobile shone on the railroad car, but Murray's efforts then to avert the collision were unavailing.

To overcome the evidence of their negligence in failing to observe either of the warning signs and in driving into the side of the train, the appellants invoked the humanitarian "last clear chance" doctrine, and relied particularly upon the following testimony of the locomotive engineer:

"Q. What was the first — Did you ever see the Murray car yourself, Mr. Mobley? A. Yes, sir. I saw the headlights. That was all.

"Q. How far was it from the crossing when you saw the headlights? A. Well, I would say it was 300 feet, 400 maybe right in that neighborhood.

"Q. Somewhere around three or four hundred feet? A. Yes, sir.

"Q. What rate of speed was the car going at that time? A. It looked like he was going at a fast rate of speed, just judging from the lights coming down the road.

"Q. You think he was going pretty fast? A. Yes, sir.

"Q. Well, did either the fireman or brakeman say anything to you about the car? A. No, sir. I called their attention.

"Q. What did you say? A. I asked them whether that car was going to get to a stop.

"Q. What did they say? A. The brakeman turned around to judge it, to see whether it was going to get to stop or not.

"Q. And did he say anything to you about whether or not it was going to get to stop? A. He said, `No\'.

"Q. And the fireman had stopped firing then? He fired back up there when you were pumping — A. He was firing when I asked whether the car was going to get stopped or not.

"Q. Did you see the car, using the brakeman\'s window? Is that the window you saw it out of? A. The left cab window, yes, sir.

"Q. In other words, it was almost to your left when you first saw it? A. Yes, sir.

"Q. What did you do then, Mr. Mobley? A. Applied the brakes for emergency when he said `No\'."

The engineer testified that he had gained a speed of about fifteen miles per hour and that after he applied the emergency brakes it took approximately seventy-five feet within which to bring the train...