Thе appellants, wife and child of Dwight Russell, deceased, brought this action in the Circuit Court of Adams County against the appellee, Mississippi Central Railroad Company, to recover damages for the alleged wrongful death of the husband and father.
*746 After the plaintiff had closed her ease, there was a directed verdict given on behalf of the defendant and judgment was entered accordingly.
The principal grounds assigned for error were the sustaining of the motion for a directed verdict on behalf of the defendant railroad company and the refusing of the plaintiffs’ questions to witnesses whether or not the crossing was easy to see at nighttime.
In determining whether the lower court erred in excluding the evidence, we must view the record in the light оf most favorable conclusions in appellants’ behalf which the jury could reasonably have drawn therefrom and treat as proved all material facts in appellants’ favor which the evidence established either directly or by reasonable inference.
The appellant decedent was instantly killed when his automobile struck the third car of a train standing аcross the Liberty Road near Natchez, Mississippi. His automobile ran into a box car which blocked the road. The train crew was carrying out the railroad’s business in using the spur track running into the Johns-Mansville Plant. The appellant decedent was traveling west on a paved road twenty feet in width.
If appellant made out a case for the jury, it was the testimony of several witnеsses who testified to the general effect that the road was steeply downgrade for a considerable distance as one approached the crossing from the east and that it flattened out within 100 feet or less before reaching the railroad crossing. They also stated that because of this topography, the lights of an automobile would not allow thе driver of an automobile to see the train until the vehicle had descended this hill and reached the flat or level portion of the road, when the vehicle was within 30 to 100 feet of the сrossing. There was considerable testimony about weeds along the roadway, high banks, and other conditions along the road east of the crossing, but we are of' the opinion that *747 this testimоny did not tend to bring appellants’ case within the exception to the rule hereafter stated.
The accident happened around 12:15 on the morning of December 12. It is in evidence that the deceased had worked in this community at different times for several years as an employee of an oil company and that the company had wells in the Liberty Road area, the road in question.
All witnesses testified that the Liberty Road made a curve some 1,100 feet northeast of the crossing. Maps and photographs were introduced showing that the Liberty Road was straight some 700 or more feet east of the crossing.
It is in evidence that the whistle was blowing, the bell ringing and the engine was lighted before making the crossing; the train had been across the сrossing for a minute and had stopped for half a minute before the accident.
We believe that this case is governed by Gulf M. and N. Railroad Co. v. Holifield,
The rule is firmly established in this state that a railroad has the right to occupy a public crossing for its legitimate business purposes and without any warning thereof by lights or otherwise. Boyd v. Illinois Central R. R. Co.,
We will assume for the purpose of this opinion that if the evidence for appellants would have justified a finding that there was a steep hill descending from the east to a point near the crossing where the road became flat, or nearly flat, so that lights of a vehicle approaching the crossing from the east would not reveal the presence of the box car until the vehicle was within 30 to 100 feet of the crossing*, then appellants would have brought their case within the exception to the rule, as stated above. If the oral testimony of the witnesses was all that was before the court it may be that appellants would have made out a case that would withstand a motion for a directed verdict. But even under the rule that the evidencе must be viewed in the light most favorable to appellants, as already stated, appellants’ proof did not make a case for the jury for the reason that photographs аnd engineers plats shown by appellants reveal the physical facts. These photographs and plats and the testimony of appellants ’ engineer show that there *749 is no steеp bill as indicated by some of tbe oral testimony. It shows that tbe roadway descends slightly towards tbe crossing for about 600 or 700 feet and there is no abrupt dip sufficient to have an appreciable effect on headlights of an automobile approaching the crossing from the east. The testimony must yield to these physical facts.
This rule is stated by the following authorities. S. H. Kress & Co. v. Sharp, 1930,
“The testimony even of disinterested and un-impeached witnesses on the subjects of measurements, distances and the like, which is basеd merely on memory, estimate or casual observation, must yield to that which is based on actual measurements.” S. H. Kress & Co. v. Sharp, supra.
“These photographs disclose the facts to ns by way of demonstration, and we apply the law to the facts thns demonstrated — any verdict to the contrary notwithstanding. ’ ’ Mobile & O. R. Co. v. Bryant, supra.
This established law of Mississippi and elsewhere controls in this case wherein consideration is given to the testimony of the witnesses, plats of survey and photographs in the record of the cause in the trial court.
The appellants insist that the Boyd case, supra, еntitled them to go to the jury. We find that in the Boyd case the railroad did not comply with the statute in regard to the crossing sign and that the topography of the roadway approaching thе crossing was considered together with the fact of the failure to maintain the stop sign and the further fact that not a box car but an empty flat car was across the roadway, the sidеs of which were only 15 to 18 inches in height. We do not think the Boyd case is applicable here.
*750 The plaintiff assigns as error the court’s refusal to permit plaintiff to question witness on whether оr not the crossing was an easy or defective crossing to see at night. The record shows that the court permitted the witness to testify fully as to facts which witness observed. The plaintiff did not makе a showing of what the witness’ testimony would be and the Court has no way of knowing whether the testimony would he competent or not. The question as to the opinion of a witness was sustained inferring that this wаs invading the province of the jury. The error assigned refusing the civil engineer and surveyor to testify as expert witnesses regarding whether or not the crossing involved was a dangerous crossing, and extra hazardous to the traveling public, especially at night, was clearly invading the province of the jury in seeking an opinion. The engineer testified to all facts observed by him. The plaintiff cannot complain of the court’s ruling since no showing was made of what the response of the witness would have been.
The authorities referred to simply mean that the railroad сompany had the right to assume that Russell was complying with the law. If he had been, it is manifest that the collision would not have occurred.
After careful consideration of all appellants’ contentions, we are of the opinion that the lower court was correct and should be affirmed.
Affirmed.