ILL. CENT. R. CO. v. HOUSTON

Cowles Horton, of Grenada, and Lucius E. Burch, Jr., and Clinton H. McKay, both of Memphis, Tenn., for appellant.

Outstanding in the case these facts appear:

(1) Plaintiff was at a crossing with which he had been familiar for 16 years. Before the collision nothing unusual occurred.

(2) Plaintiff was driving the latest model automobile. Its brakes and lights were standard and plaintiff admitted he could have stopped it within 50 feet.

(3) The train had occupied the crossing long enough before the collision for plaintiff to have seen it and to have stopped his automobile. "Barely moving" — "going mighty slow," it had been across the street so long that its north end had gotten to a distance north of the street equal in length to that of two freight cars, a part of another car and the coupling spaces between the cars.

(4) The automobile was driven with such speed that when it struck the train headlong the automobile was wrecked and plaintiff knocked unconscious. Nothing less than a violent blow could have produced this effect and no such blow could have been given unless the automobile's speed had been considerable.

(5) The street was straight, paved and level. There was nothing on the crossing or the street except the automobile and the train and nothing between the two to prevent the plaintiff from seeing everything in front of him. Nevertheless, he admitted that he not only did not see the train at all but did not even know of its presence on the crossing until he struck it.

(6) Plaintiff kept no lookout nor did he drive with any care whatever. This clearly appears by considering that: (a) if he had looked ahead he would have been bound to see the train in the range of his perfect, standard headlights; and (b) he did not even try to show, but remained completely silent as to, what he was doing on this last 230 feet of his journey before the collision. He certainly would not have left this feature of his case untouched had he been able to say he was keeping a lookout or driving with any degree of care.

(7) His companion, Mr. Prior, saw the train when they got within 20 feet of it. What this witness was doing, whether he looked ahead before that time or not and what was his conduct on the first 210 feet of this last 230 feet they traveled became another mystery of this lawsuit. Mr. Prior was not only friendly to the plaintiff but interested on his side, the witness also having a suit against the defendant for this same collision.

(8) Plaintiff claimed, but failed to prove, that he ran into a flat car. Had he made such proof the result would be the same for there is no difference in law between flat cars and other cars in suits of this kind.

(9) Nowhere in the testimony of a single witness will be found the statement of any actionable negligence by any person connected with the train. All that the train ever did was to occupy the crossing and then take the blow delivered by the plaintiff.

Defendant, we submit, was entitled to a peremptory instruction. All of the pertinent authorities so declare.

Gulf, M. N.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, M. N.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; Spilman v. Gulf S.I.R. Co., 173 Miss. 725, 163 So. 445; Summerford v. Illinois Cent. R. Co. (Miss.), 196 So. 264; Gulf, M. N.R. Co. v. Addkison, 189 Miss. 301, 194 So. 593; New Orleans N.E.R. Co. v. Burge, 191 Miss. 303, 2 So.2d 825; Railroad Co. v. Guthrie (Ala.), 114 So. 215; Railroad Co. v. Lambert (Ala.), 160 So. 262.

S.C. Mims, of Grenada, for appellee.

Counsel for the appellant in their brief apparently do not recognize the theory upon which appellee bases his cause of action. The suit was not filed with the expectation that this court would reverse its position in the cases relied upon by appellant, but upon the theory, as alleged in his declaration and supported by the proof, that at this particular crossing of the appellant such peculiar conditions of hazard existed which reasonable prudence should have reasonably foreseen would likely lead to a collision, notwithstanding ordinary care on the part of the public who had the right to use the street and highway intersecting the appellant's switch yard, and appellant was thereby charged with extraordinary duty.

If the facts in the case at bar were like the facts in the cases cited by appellant this lawsuit would not have been filed. The facts in the cases cited show that the injured parties knew, or by proper diligence could have known, that they were approaching a railroad crossing (in none of the cases were there more than two tracks to cross) and that it was their duty to stop, look and listen and then proceed across the track, looking in front of them as they approached the track, and that if they saw the track occupied by the cars of the railroad and ran into them, the failure of the railroad to ring a bell or blow a whistle was not the proximate cause of the injury but that the proximate cause was the failure of the driver of the motor vehicle to keep a proper look-out in front of him.

The appellee in the case at bar was confronted with a very different situation. He stopped his car and looked and listened, and then proceeded to cross eleven tracks with the view from the north and the south obscured by the buildings of the appellant. To cross with safety under the circumstances it was required that the appellee look to the north and south as he approached each of these numerous tracks, and necessarily could not be looking straight ahead as the drivers of cars in the cases cited by appellant could have done. The proof is that the injury occurred after it was dark and that there were no lights; that there was no flagman to warn the appellee that the appellant was backing its cars down the switch without any light on the cars or any signals of any kind, no bells ringing or whistles blowing to give warning to the public who had the right to use this crossing as much as the appellant. Appellant backed one or more of its cars across the road out of the dark at a time when the appellee had reached a point within twenty feet of the switch track on which the freight car was being backed, and was required to pass over two or more other switch tracks and look to the north and south in the traversing of the same before he reached the track upon which the appellant had out of the dark without any warning or signal backed its cars.

In the cases cited by appellant it is recognized that a railroad would be liable under certain circumstances although its cars were occupying the track at the time of the collision. Although the track of a railroad is itself a warning of danger and notwithstanding the statutory regulations as to warnings at a railroad crossing, it is the duty to adopt a reasonable, safe and effective mode, commensurate with the danger at the particular crossing, of warning travelers of the approach of trains, especially where the extraordinary character of the crossing is caused by the railroad company itself.

If a railroad crossing is especially dangerous to travelers, on account of its locality or mode of construction, or because the track is curved or the view obstructed, the railroad company must exercise such care and take such precaution as the dangerous nature of the crossing requires, and, failing in this, is guilty of negligence.

33 Cyc. 941, Sec. 5; 22 R.C.L. 990, Sec. 217.

It is also held that the question as to what is due care and the duty of the railroad company in respect to the peculiar dangerous condition of a crossing and obstruction of view is left to the jury. This rule requiring the adoption of extraordinary means to signal the approach of trains at peculiarly dangerous crossing also has frequent illustration in cases where trains or engines have been backed over crossings.

22 R.C.L. 990, Sec. 217; 22 R.C.L., Sec. 216.

Argued orally by Cowles Horton, for appellant.