Yazoo & M. V. R. Co. v. Williams

• Decision Date: 23 April 1917
• Docket Number: 18950
• Citation: 74 So. 835,114 Miss. 236
• Parties: YAZOO & M. V. R. CO. v. WILLIAMS
• Court: Mississippi Supreme Court

74 So. 835

114 Miss. 236

YAZOO & M. V. R. CO. v. WILLIAMS

No. 18950

Supreme Court of Mississippi

April 23, 1917

Division A

APPEAL from the circuit court of Tunica county, HON. W. A. ALCORN Judge.

Suit by Burch Williams against the Yazoo & Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed, and case remanded.

Montgomery & Montgomery, Charles N. Burch and H. D. Minor, for appellant.

Wilson & Armstrong, for appellee.

OPINION

HOLDEN, J.

The appellee, Burch Williams, sued the Yazoo & Mississippi Valley Railroad Company in the circuit court of Tunica county for fifteen thousand dollars as damages for personal injuries to himself, and the destruction of his automobile, on account of being struck by one of the appellant's trains while crossing the railroad track at Clayton in November, 1914. There was a jury verdict and judgment for ten thousand dollars in the lower court from which this appeal is prosecuted.

The facts in the case are stated fully as follows: At Clayton station, an unincorporated village, there is a long passing track, a house track, a depot, and the main line of the appellant railroad company running north and south. A public road runs north and south, parallel with the railroad, on the east side of the depot, main line, and passing tracks, and crosses the railway tracks, from east to west, a short distance north of the depot, and runs thence north along the railroad right of way, and parallel therewith, on the west side for several miles. On the east side of the railway at the point where this public road crosses the railway tracks, another road, commonly known as a plantation or private road, runs north on the east side of the railway track close by and parallel therewith, about two thousand, four hundred feet to a point where it turns west and crosses the railway tracks at what is generally understood to be a plantation crossing, which we will designate as the "north crossing," and after crossing the track this road leads into the aforesaid main public road lying on the west side of the railroad. There is also a field road turning out east into the adjoining plantation at the point immediately east of the said north crossing. It also appears that there is a private road running still further north of this private crossing on the east side of the railroad track. The testimony shows that this plantation road on the east side running from the public crossing, near the depot, which crossing we will designate as the "south crossing," to the north crossing, two thousand, four hundred feet north, was frequently and generally used by the public, and that the north crossing was likewise in common use by the public in crossing the railroad track from the east to the west at that point in order to reach the said public road on the west side of the railroad.

The injury occurred to Mr. Williams at what we term this "north crossing." This crossing was not considered a public crossing in the statutory sense that the railroad was required by law to give certain warnings, such as sounding the whistle or ringing the bell, upon approaching it; but it was a private or plantation crossing, which was frequently and habitually used by the public for several reasons, among which was the fact that the south public crossing over the railroad track just north of the depot was frequently and habitually blocked by trains standing on the tracks at that point, which made it necessary for persons desiring to cross the track to travel east side plantation road north to the north crossing and there cross over to the west in order to get into the public road again on the west side. It is shown that the public crossing just north of the depot, which we have termed the "south crossing," was habitually blocked by standing trains for as long as twenty or thirty minutes at a time, and that this fact was commonly known to persons using the roads and crossings in the Clayton community. These conditions and the frequent and common use of the east side plantation road, and the north crossing, by persons traveling in vehicles, was known to the appellant railroad company.

On the day of the injury, Mr. Williams had come from the south, traveling up the public road on the east side of the railroad in his automobile to the south crossing for the purpose of crossing the track at this public crossing, going from east to west on this public road. When he reached this south public crossing, he found it blocked by appellant's cars, and after waiting about two minutes he decided that he would follow the plantation road north on the east side of the track and cross over the track at the north crossing. He said he knew that it was a common every day occurrence for this south crossing to be blocked from fifteen to thirty minutes at a time, and he decided to not wait longer for the crossing to be opened, but pursued the usual and customary way of crossing the track by going up the plantation road on the east side and crossing over at the north crossing into the public road on the west side. So, he started north on this plantation road on the east side of the track, and, when he reached the north crossing and turned west on the crossing to cross the track, he and his automobile were struck and injured by the passenger train of appellant which was proceeding north on the main line at a rate of speed of about thirty-seven miles per hour. At the time there were two freight trains on the passing track, one of which was headed south and the other was headed north, and the engine of the north-bound freight train was standing still on the passing track a distance of five hundred and thirty-three feet south of this north crossing. It was a clear day, and the track was straight and unobstructed for at least the distance of five hundred and thirty-three feet south of the north crossing. The appellee testifies that he was travelling alone in his automobile on this road, and that he turned west at the north crossing to cross over and was on the track when he was truck and injured by the train. He says there was no warning given by the engineer of the approach of the train either by bell or whistle, and that the first that he knew of the train was when the engine struck his car in which he was riding. Other witnesses for appellee Williams testified that no warning by bell or whistle was given by the engineer before the injury occurred.

It appears from the record including pictures, diagrams, maps, etc., filed here, that the two private or field roads leading north and east respectively immediately east of the north crossing were comparatively dim, unusual roads, and that the plantation road leading from the south crossing to the north crossing east of the track appeared to be a plain and much traveled road leading to and over the north crossing. It further appears conclusively from the testimony in this record that the engineer of the passenger train which struck appellee Williams could have seen, and did see, Williams and his automobile traveling north in the road on the east side of the track for a distance of at east five hundred and thirty-three feet before the passenger train reached the north crossing. The engineer testified that he saw the automobile and Williams while he was traveling the distance of five hundred and thirty-three feet, and that he was watching the automobile closely, and that he observed that Mr. Williams did not look back toward the train.

The engineer testified:

"I was watching the automobile very closely and just as soon as I seen the left forward wheel make just a turn, why, I thought he was going to try to cross. Why, by his motion of the head that he had never looked around, I could just see the side of his cheek, and it looked to me he did not look to see where I was, or anything else. Q. And you noticed he didn't look back? A. I am positive about it. Q. You are sure of it? A. Yes, sir."

Which testimony shows conclusively that the attention of the engineer was attracted to the traveling automobile and its occupant, and that he had them under observation for a distance of over five hundred feet before the crossing was reached by the train.

The engineer also testified for the railroad company that he had stopped at the Clayton station and then proceeded north on the main line, increasing his speed until he was traveling at the rate of about thirty-seven miles per hour when he passed the north clear end of the passing track at which point the engine of the north-bound freight train was standing. He testified that he sounded the road crossing warning at some point south of the south public crossing, and again about six hundred feet south of the north crossing, and that he started his bell to ringing which was worked automatically, and that it continued to ring until reaching the north crossing; that he saw appellee, Williams, in his automobile traveling north of the plantation road east of the track and observed him closely, but that he did not think Williams was going to cross the railroad track at the north crossing, but he thought Williams would turn out eastward into the field road leading east from the north crossing; that, as soon as he saw Williams turn west toward the north crossing, he immediately applied the brakes and did everything within his power to stop his train and avert the injury; and that at the time he struck the automobile the speed of the train had been reduced to about eight miles per hour.

The undisputed evidence in this case shows that the appellee, Williams, undertook to cross the railroad track without first looking or listening for the approach of trains, nor did he stop or make any...