Archer v. Gulf, Mobile & Ohio Railroad

186 So. 2d 470, 1966 Miss. LEXIS 1314
CourtMississippi Supreme Court
DecidedMay 16, 1966
DocketNo. 43989
StatusPublished
Cited by1 cases

This text of 186 So. 2d 470 (Archer v. Gulf, Mobile & Ohio Railroad) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Archer v. Gulf, Mobile & Ohio Railroad, 186 So. 2d 470, 1966 Miss. LEXIS 1314 (Mich. 1966).

Opinion

BRADY, Justice:

This is an appeal from a directed verdict granted appellee by the First Circuit Court District of Jones County on a suit [471]*471for personal injuries received by appellant while a passenger in an automobile which collided wtih the side of a locomotive of the appellee, Gulf, Mobile & Ohio Railroad Company. When the appellant rested his case, the trial court, on appel-lees’ motion, directed a verdict for ap-pellees and entered judgment, from which the appellant prosecutes this appeal.

There is but one issue in this cause, and that is: Did the trial court err in directing a verdict on behalf of the appellees?

The undisputed evidence in this cause offered by the appellant and his witnesses clearly establishes the following facts.

On January 23, 1962, appellant, who was on a joint business venture with a fellow employee, James Pace, was traveling in a 1960 Rambler station wagon driven by Mr. Pace. The weather was cold and cloudy, and it was misting rain. Appellant and Mr. Pace that morning had driven from Meridian, Mississippi, to Union, Mississippi, on their joint business mission, and were engaged in returning from Union to Meridian at a speed of approximately forty to fifty miles per hour. The asphalt highway, No. 494, upon which they were traveling, was tortuous, wet and somewhat slippery.

The record shows that they were traveling in a southerly direction and were proceeding down a slight hill. They met and passed an oncoming car approximately two hundred feet from the tracks. Mr. Pace, the driver of the car, did not know how far the straight road continued to the tracks. The record discloses that there are three railroad warning signs situated at various distances from the crossing proper. Neither the appellant nor Pace knew how many railroad signs were there, and they never saw any of the signs. The appellant was asleep until just before the crash and therefore he did not see or know anything about the attendant circumstances.

Mr. Pace testified that when he was about one hundred feet from the crossing he saw the train; that it was about the same distance from the crossing that he was, and that they met at the crossing almost at the same time. Mr. Pace testified that he did not hear a whistle or bell signal, and that he did not see the burning headlight of the engine.

Mr. Pace further testified that as soon as he became aware of the train, he immediately put on his brakes and endeavored to turn to the left into what he thought was a little side road close to the tracks. However, there was no road at this place. He testified that his car began skidding, and that he was not able to turn the car into the side road. He estimated that the train and his car were traveling at about the same rate of speed, because he determined that they were about the same distance from the crossing. He concluded that the speed would have to be about the same because of the collision occurring as it did.

The record discloses that once he turned his car to the left, he never made any effort to turn it to the right, and that the right front portion of his car struck the side of the engine, twenty-one feet from the front. The record discloses that after the car started to skid he did not let up on his brakes or turn his steering wheel back to the right. He stated he did not know whether he ever turned the wheel back to the right and he did not know whether there was any movement of the tail end of the station wagon which he was driving. Pie denied that the car was out of control; however, he stated that he did not know what happened except that he was making thirty miles per hour when the right front of his car ran into the side of the engine. He admitted that he was in error about there being a roadway along the side of the track into which he attempted to turn. He stated that he looked to the right and to the left after passing the approaching car, but he did not see the railroad stop signs on the day of the accident; that he did not look beyond the tracks.

[472]*472Appellant placed Mr. E. H. Swetman, one of tlie appellees, on the stand as an adverse witness. Appellee Swetman, the engineer, testified he saw the appellant’s car when he was approximately eighty yards from the crossing, but that when he saw this car it was twice the distance from the crossing that the engine was. He testified that as the engine approached the crossing he could see for a distance of one hundred fifty to two hundred yards up the road upon which appellant was traveling. There is no statutory limitation of the speed at this railroad crossing, but Swetman testified the speed authorized there according to appellee’s rules is thirty miles per hour, with a variation of five miles, and that, at the time, he was traveling approximately thirty to thirty-two miles per hour.

Seven photographs were introduced into evidence and these photographs materially contradict many of the statements made by Mr. Pace. Appellee Swetman testified, without contradiction, that after he realized Pace was not going to stop, he was unable to reduce the speed of the train within a distance of two hundred feet; that when he applied his service brakes the train could not have been going as fast as forty to forty-five miles per hour, as estimated by the appellant. It is undisputed that when Mr. Pace’s automobile struck the side of the engine it was traveling thirty miles per hour.

Round yellow railroad warning signs near the right driveway were clearly shown in the photographs and could and should have been seen by Mr. Pace when he was descending the slight hill. The sign, “Mississippi Law Stop,” also could and should have been seen by Mr. Pace for a considerable distance before he came to it. In addition, there were crossbar signs likewise indicating a railroad crossing. The photographs which were admitted indicate that the round, yellow railroad warning sign is located at least several hundred feet north of the track, and if Mr. Pace had been driving between forty and fifty miles per hour, he would have had ample time, after observing the sign, to take necessary corrective driving precautions to avoid a collision. Even if he did not see the round, yellow sign, he could have seen the crossbar and the “Mississippi Law Stop” sign after he started his descent down the hill and began his level approach toward the tracks.

Mr. Pace admitted that he did not make any effort whatsoever to reduce the speed of his car until he was within a hundred feet of the railroad crossing. He further concedes that he was driving on a very wet, slick highway. He admitted further that he applied his brakes with full force, without letting up on them, after he had started to skid. He testified that he attempted to turn into a driveway leading to a farm house, but the photographs clearly show that the only driveway is a considerable distance from the railroad tracks. The photographs do not indicate anything which remotely appears to be a driveway near the tracks. This indicates that Mr. Pace saw the train before he arrived at the point opposite the driveway. The proof was ample that Mr. Pace, in the exercise of ordinary care, could and should have seen the warning signs which would have alerted him to the fact that a railroad crossing was in his path.

The physical damage which the station wagon did in breaking the cast iron ladder and in crushing the battery box on the side of the engine indicates that Mr. Pace’s automobile struck the engine with considerable speed and force. Mr.

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Bluebook (online)
186 So. 2d 470, 1966 Miss. LEXIS 1314, Counsel Stack Legal Research, https://law.counselstack.com/opinion/archer-v-gulf-mobile-ohio-railroad-miss-1966.