421 F. Supp. 488 | S.D. Miss. | 1976
SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW
On September 2, 1976, the Fifth Circuit Court of Appeals, while retaining jurisdiction of this case on appeal, remanded it to the District Court for additional findings of fact and conclusions of law with respect to four issues. 538 F.2d 96.
(1) What constitutes an unusual and dangerous crossing?
Turning to what constitutes an unusual and dangerous crossing, Gulf, M. & N. R. Co. v. Holifield, 152 Miss. 674, 120 So. 750, was the forerunner of Mississippi cases which hold that a railroad company has the right to occupy the crossing for its legitimate purposes, and while so occupying the crossing it was not required to maintain lights on its cars, or to station a man with a lantern at the crossing to give warning that the crossing was obstructed, unless the conditions and circumstances were such that the train crew knew, or in the exercise of reasonable care and caution should have known, that a person driving upon the street at a reasonable rate of speed in an automobile properly equipped with lights, and carefully operated, could not see or might not be able to see the railroad cars in time to avoid a collision therewith, or, as stated by the court in quoting from an Alabama case: “The employees of the defendant, in the absence of some peculiar environment, are justified in believing that travelers in automobiles properly lighted and driving at reasonable speed will observe the cars upon the crossing in time to avoid coming into collision with them.” In Spilman v. Gulf & S. I. R. Co., 173 Miss. 725, 163 So. 445, the Mississippi Supreme Court said: “. . ., we find that every court which has considered the question, including this court in Gulf, M. & N. R. Co. v. Holifield, 152 Miss. 674, 120 So. 750, has held that the occupancy of the entire crossing by a railroad train [is] sufficient warning within itself of the presence of the cars on the crossing, and this includes flat cars.”
Boyd v. Illinois Central R. Co., 211 Miss. 409, 52 So.2d 21, established an exception to the “occupied crossing” rule of Holifield, Spilman, and like cases, which held that the presence of the railway car upon the crossing is all the notice which a traveler needs, by adding “. . . it must be at once apparent that such an expression has no application where the conditions and circumstances are such that reasonable care requires some further warning.” Illinois Central Railroad Company v. Williams, 242 Miss. 586, 135 So.2d 831, was such a case. In Williams, the court held that to fall within the exception stated in Holifield there must be “some peculiar environment which renders the crossing unusually dangerous.” The court further stated, as held in Boyd, where the evidence as to unusual danger and failure to take proper precautions is in dispute, questions of the railroad’s negligence and contributory negligence of plaintiff are issues for decision by the trial court. In Williams, although there was the usual, unlighted “Mississippi Law Stop” sign at the approach to the crossing, the court held that, where the tracks were slightly raised at the point that they crossed the street at an angle so that an approaching automobile had to be fairly close before its light beams would strike a crossing boxcar, and, where brightly lighted structures in the background caused an approaching driver some confusion, such conditions constituted an “unusually dangerous crossing” within the occupied crossing doctrine, requiring special precautions by the railroad. The court found that the weight of the evidence reflected that the crossing was unusually dangerous, that the railroad had ample notice of this fact, but wilfully failed to take adequate precautions to notify the traveling public, and further found that the negligence of the railroad and Williams were concurring causes, each being a proximate cause of the accident, and the comparative negligence statute (Section 11-7-15, Mississippi Code of 1972) did not bar recovery, but only served to diminish the recovery by Williams’ next of kin.
In its original opinion in this case, this Court did not treat this case as one involv
(2) By what standard should the court determine the issue of negligence vel non on the part of the railroad company (a) at an ordinary crossing, (b) at an unusual and dangerous crossing?
Suffice it to say that, although this engine was equipped with the statutorily required lights (nothing in the record shows whether the light on the front and rear of the engine was the wig-wag type or not), and was equipped with a bell and horn, the sounding of which was disputed, and the required Mississippi stop sign was properly located on either side of the crossing, all of which may have been sufficient to fulfill defendant’s obligation of ordinary care to the traveling public during the day time, and thus be within the limits of an ordinary crossing, the Court found still finds that the engine, as it was about to enter the crossing in the dark of the night, was not sufficiently illuminated of itself, or the crossing area was not sufficiently illuminated, for plaintiff to see the engine as it entered the crossing in time to warn him of his peril, and, under the circumstances of this case, the crossing presented plaintiff with an unusual and dangerous condition which was known, or should have been known to the defendant, requiring a greater degree of care on the part of the defendant in the form of an additional warning, such as a flagman at the crossing or illumination over the crossing. See Boyd v. Illinois Central R. Co., supra. In this connection, in the deposition of O. S. Koski, a security guard for International Paper Company, who stated that he periodically checked the flashing light, and who was making his rounds at the time of the accident about three-quar
(3) What effect has Mississippi’s adoption of comparative negligence had on the doctrines of subsequent negligence/last clear chance/ “better chance” and proximate cause?
The Mississippi Supreme Court dealt with the doctrine of “last clear chance” in Fuller v. Illinois Central R. Co., 100 Miss. 705, 56 So. 783, decided in 1911, wherein that court in reciting the duty of a defendant railroad company toward one injured by the running of its train, held that the contributory negligence of the party injured will not defeat the action if it is shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequence of the injured party’s negligence, citing from authorities thusly: “The party who last has a clear opportunity of avoiding the accident, not withstanding the negligence of his opponent, is considered solely responsible for it.” The implication of other language in this decision is that under the doctrine of last clear chance, the plaintiff’s negligence, if any, could not be a proximate contributing cause, but was remote, inasmuch as the party who has the last opportunity to avoid the injury is the one upon whom the blame shall fall. In an early North Carolina case, which the Mississippi court relied on, contributory negligence was then a complete bar, as it is now in a number of.states. In Fuller, decided one year after Mississippi’s adoption of its comparative negligence statute, now Section 11-7-15, Mississippi Code of 1972, the court apparently did not consider this statute’s effect on the doctrine of “last clear chance”, as it treated contributory negligence as a complete bar, and having no effect in the application of the last clear chance doctrine, the Court concluding that, in such a case, contributory negligence was remote or not causative of the injury. In addition to Fuller, plaintiff has cited a number of Mississippi decisions and federal decisions applying Mississippi law that reflect that the doctrine of last clear chance is still viable in Mississippi. See Illinois Central Railroad Company v. Pigott (1965), 254 Miss. 429,181 So.2d 144, (facts invoking the doctrine held to be a jury question); New Orleans and North R. Co. v. Dixie Highway Express (1957), 230 Miss. 92, 92 So.2d 455 (case remanded for the jury to determine question of contributory negligence, if any, and, whether under comparative negligence statute, damages should be diminished, and further for the jury, on the issue of damages, the question whether the engineer’s negligence was an intervening, sole cause of the collision, and whether the last clear chance doctrine applied thereto); Palisi v. L. & N. R. Co. (D.C.1964), 226 F.Supp. 651 (evidence insufficient to take to jury under last clear chance doctrine); Underwood v. ICRR (5 Cir. 1956), 235 F.2d 868 (under Mississippi law, there must, under last clear chance doctrine, be a clear chance after the peril is actually discovered and actually appreciated); and Illinois Cent. R. Co. v. Lee (5 Cir. 1954), 212 F.2d 496 (for the jury to determine whether railroad employees had used due diligence after they knew, or should have known by exercise of reasonable diligence, that grain truck was in a position of peril and did all they reasonably could to avoid hitting it). In only one of the above cases, involving the last clear chance doctrine, Dixie Highway Express, supra, was the issue of comparative negligence also involved, yet the Mississippi Supreme Court indicated in its remand that both issues were for the jury. Also of note is a footnote, No. 13, to Judge Cameron’s decision in
The Court acknowledges that counsel for both parties complied with the Appellate Court’s mandate to assist this Court in responding to the questions posed by the Appellate Court.
This Court re-affirms its original opinion that under the circumstances in which this accident occurred, the crossing was dangerous in that there was insufficient illumination for the plaintiff to see the rear of the engine as it backed out into the crossing and that plaintiff was equally negligent in having failed to observe the “Mississippi Law Stop” sign. On this basis, plaintiff is entitled to recover the sum of $31,447.79.
An order to this effect may be submitted. The Clerk of this Court is directed to return the record in this case, including the depositions of Robert L. Wheeler, Jr. and K. K. Kennerly to be filed and made a part of this record, to the Fifth Circuit Court of Appeals, together with a duplicate original of this opinion and the order to be rendered thereon.