author:
ROBERTSON, Presiding Justice, LEE, Justice, specially HAWKINS, Justice,
      BOWLING, Justice,

text:
    ILLINOIS CENTRAL GULF RAILROAD v. Cheryl BURNS et al.
    No. 52328.
    Supreme Court of Mississippi.
    April 8, 1981.

      Natie P. Caraway and Henderson S. Hall, Jr., Wise, Carter, Child & Caraway, Jackson, for appellant.
    Harlon H. Varnado, Ron C. Smith, Jackson, Eugene C. Tullos, Raleigh, for appellee.
    Before ROBERTSON, BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Illinois Central Gulf Railroad (ICG) appeals from the judgment (based upon a jury verdict) of the Circuit Court of Smith County for $150,000 damages, in favor of Cheryl Burns, et al. The declaration originally was against ICG, Stegall Construction Company, Inc., S. E. Smith and F. B. Tinsley. A voluntary non-suit was taken against Gaines W. Stegall. At the close of the case, the court directed verdicts for defendants, Stegall Construction Company, Inc., S. E. Smith and F. B. Tinsley.

Although there were 11 grounds of negligence charged in the declaration, the court found for Defendant ICG on all grounds except whether ICG was negligent in maintaining and keeping down the vegetation along its east right-of-way in the vicinity of the private crossing to the Stegall lands west of the railroad tracks. This was the sole ground on which the court submitted the case to the jury.

About 5 o’clock on Sunday afternoon, October 3,1976, Herman Burns and two of his sons by his first wife were going bird hunting. Bums was driving his car from east to west to the Stegall property in Madison County on the west side of a private railroad crossing which had been constructed by ICG at Stegall’s request and upon the payment of $8,330 to it, to furnish ingress and egress to the Stegall property. Burns drove his automobile slowly onto the railroad right-of-way and stopped in the middle of the railroad tracks. At the same time, a long freight train of ICG with three diesel engines was proceeding north on these same railroad tracks.

F. B. Tinsley, the engineer, was seated on the east side of the lead engine, while Tyler, the brakeman, and S. E. Smith, the fireman, were seated on the west side of the engine. Smith’s only duty as fireman was to keep a lookout ahead. Tinsley and Smith testified that the train whistle was blowing continually and the headlight of the lead engine was on from 900 feet south of this private crossing. Tinsley and Smith testified also that when the train was four or five hundred feet south of the crossing they saw Burns slowly driving east to west on the road leading to Stegall’s property. He didn’t stop until he was in the middle of the railroad tracks. At that time the train was about 150 to 200 feet from him. Tinsley and Smith stated that they were looking directly at Burns and fully expected him to proceed on across the tracks, but that Burns never looked south, looking only to the north and northwest. The train hit Burns’ car, pushing it some distance north of the crossing before the engineer and fireman could stop the train by putting on all emergency brakes. Burns was instantly killed.

At the trial, the testimony was undisputed that Burns never looked to the south, the direction from which the train was coming. The testimony of Tinsley and Smith was that if Burns had looked south he could have clearly seen the train some distance away, that there were no obstructions to hinder his view, that the vegetation on the east side of the track had been poisoned and killed, and that as you approached the east apron of the railroad track you could see clearly down the tracks to the south.

Plaintiffs’ witness, David Cox, who was town marshal of the town of Madison at the time of the accident, testified that as you approach the apron of the railroad tracks (about 20 feet from the east rail) “you can see clearly to the south”.

Plaintiffs’ witness, Eddie Clark, deputy sheriff of Madison County, testified that when the front bumper of a car was on the track you could see the marker lights 400 yards south of the crossing. Clark admitted that he couldn’t say how far down the track you could see 25 feet east of the crossing because he had never checked it from that distance.

Patricia Burns, the first wife of Herman Burns, and the mother of his three oldest sons, testified that she was not familiar with the site of the accident until about a week later when she went to visit it. They stopped their car to the east of the tracks, got out and looked around. She testified that you would almost have to have your car on the tracks to see anything, but she admitted that they did not get within 25 feet of the tracks nor sight down the tracks from 25 feet away. They left the scene without ever driving up to the tracks.

Cheryl Burns, the second wife, testified that from the east side of the tracks you could hardly see to the south but that the vegetation was dead-looking. Both Patricia Burns and Cheryl Burns testified that Herman Bums was very familiar with the southern part of Madison County and the Stegall land.

Gaines Stegall testified that Burns did not have permission to hunt on the Stegall property.

Colored pictures of the scene were introduced without objection and these pictures clearly show that, as you approach the railroad tracks from the east, you have a clear and unobstructed view to the south for several hundred yards. The pictures also clearly show that the vegetation on the railroad right-of-way had been poisoned because it was brown and dead-looking as contrasted to the green vegetation off of the right-of-way.

In New Orleans & Northeastern Railroad Co. v. Burney, 248 Miss. 290, 159 So.2d 85 (1963), this Court said:

“We concur and follow in the case at bar, insofar as the embankment’s obstruction of the appellee’s vision is concerned, thé rule as laid down in Russell v. Miss. Central R.R. Co. [239 Miss. 741, 125 So.2d 283], supra, and hold that appellee’s vision, as shown by the photographs, was not obscured by the embankment and weeds so that upon approaching the crossing from the east, or upon entering the right-of-way, appellee could see for considerable distance to the north up the appellant’s track and could see an approaching train thereon. Irrespective of the testimony of appellee’s witness that one had to be almost upon the tracks before you could see any distance to the north because of the embankment and weeds thereon, photographic exhibit 20E clearly and conclusively shows that a person standing in the middle of the railroad tracks can clearly see the truck parked below the Mississippi Law Stop sign apparently 150 to 200 feet away. The embankment and weeds are to the east and out of the line of vision. If a person standing 150 to 200 feet away from the Mississippi Law Stop sign can see, when looking southward, the post bearing that sign and the truck parked thereunder, it stands to reason that a person sitting in the truck can see to the north a person or train 150 to 200 feet away.
“Photograph 20B, moreover, shows that a person standing a few feet to the left and behind the Mississippi Law Stop sign can see a considerable distance further to the north up the railroad tracks. The exact distance was not measured, but only estimated. The photographs show it is a physical impossibility for the embankment to have prevented the appellee from seeing an undetermined distance to the north up the railroad tracks when he was beside the Mississippi Law Stop sign.” 248 Miss, at 306-07, 159 So.2d at 93.

Appellant, ICG, has assigned as error:

I. The verdict of the jury was against the overwhelming weight of the evidence and not supported by substantial competent evidence.
II. The trial court erred in overruling ICG’s motion for a directed verdict and in refusing to grant ICG’s peremptory instruction.
III. The court erred in granting plaintiffs’ instruction number 19 and in refusing to grant ICG’s instructions numbers 21, 22 and 24.
IV. The court erred in overruling ICG’s motion for a judgment notwithstanding the verdict of the jury or, in the alternative, for a new trial.

This was a private crossing and Ste-gall, the landowner, testified clearly and unequivocally that he had not given Burns permission to hunt on his land. He did not want people hunting on his property. Burns actually was a trespasser. If he had gotten permission, he would have been a licensee. The rule is the same for a trespasser or a licensee; one must not willfully or wantonly injure. In Illinois Central Gulf Railroad Company v. Ishee, 317 So.2d 923 (Miss.1975), this Court quoted with approval from Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960):

“The undisputed evidence for plaintiff would not warrant a jury in finding that appellees willfully or wantonly injured him. This is the recognized measure of the duty of a possessor of premises to a licensee. Bishop v. Stewart, 234 Miss. 409, 106 So.2d 899 (1958). Something more is required than mere inadvertence or lack of attention. There must be a more or less extreme departure from ordinary standards of care. The conduct must differ in quality, as well as in degree, from ordinary negligence, and must involve a conscious disregard of a known, serious danger. Prosser, Torts (2d Ed. 1955), Sec. 77. (238 Miss, at 102, 117 So.2d at 458).” 317 So.2d at 925. (Emphasis added).

The only issue submitted to the jury was whether ICG was negligent in maintaining its right-of-way, that is, whether vegetation obstructed the view of Burns in seeing the approaching train or whether vegetation obstructed the view of the train’s engineer in seeing Burns. Besides the undisputed testimony of the engineer and fireman that Burns never looked to the south, the evidence is just overwhelming that both Burns and ICG had an unobstructed view down the railroad tracks to the south for over 1000 feet. The testimony and exhibits prove beyond peradventure that ICG was not negligent in any shape, form or fashion in maintaining its right-of-way at this rural private crossing in southern Madison County.

Both the first and second assignments of error are well taken.

The trial court erred in overruling ICG’s motion for a directed verdict; it also erred in refusing to grant ICG’s peremptory instruction.

Also, the verdict of the jury was against the overwhelming weight of the evidence.

The judgment of the trial court is, therefore, reversed and judgment rendered here for the appellant.

This case was considered by a conference of the judges en banc.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and LEE, JJ., concur.

LEE, J., PATTERSON, C. J., and SUGG and BROOM, JJ., specially concur.

BOWLING and HAWKINS, JJ., dissent.

LEE, Justice, specially

concurring:

I specially concur with the majority opinion and make additional comments on the case. The accident occurred at a little-used private crossing which provided access to the Stegall land upon which Mr. Bums and his sons were about to enter. The land was not posted and, in my opinion, the Burns were licensees, not trespassers. The duty owed to a licensee and trespasser is the same, i. e., not to willfully or wantonly injure him. However, this rule is not so strict and is modified when applied to persons passing over private crossings. In that event, the train engineer must use reasonable diligence to detect a vehicle upon the tracks and when such is detected, he must use reasonable care to stop and avoid an accident. Alabama Great Southern R. R. Go. v. Martin, 205 Miss. 851, 868, 39 So.2d 501 (1949).

At private crossings which people habitually traverse, a railroad company’s duty to give signals and maintain the crossing is relative to circumstances existing at the particular time. Thus, peculiar or extraordinary circumstances might differentiate such crossing from other private crossings, accordingly impacting on the railroad company’s duty. Yazoo & M. V. R. Co. v. Wade, 162 Miss. 699, 139 So. 403 (1932).

In Illinois Central R. R. Co. v. Dillon, 111 Miss. 520, 71 So. 809 (1916), discussing the duty owed by the railroad company to persons using a private crossing, the Court said:

“In considering what duty was owed by the appellant to the deceased in this case it is necessary to view the facts and circumstances relating to the use of this crossing or footpath by pedestrians over the track. The testimony in the record shows that, while Foote street was closed so far as vehicles were concerned, pedestrians continued to use the same just as they had used it before it was vacated or closed. That every morning between the hours of six and seven o’clock employees of certain mills situated on the east side of the track crossed this railroad track at this particular place. This fact certainly must have been well known to the defendant railroad company, and by all the laws of justice and humanity they are charged with this knowledge. There was no protest of any kind by the defendant company of this use of the old street by pedestrians. In fact the record shows that a plank had been placed over a ditch on one side of this crossing and had been fastened down to hold the same for the convenience of pedestrians using the same. This being true, we regard this as a very different case from the Arnola case in 29 So. 768, 78 Miss. 787, 84 Am.St. Rep. 645, relied upon by counsel for ap-pellee. In fact, the deceased in this case was more than a bare licensee; he was an invited licensee, sometimes called an invitee or a favored licensee, and the railroad company owed him the same duty that it owes to one on its tracks at a public or other crossing; namely, the duty not to negligently kill or injure. The question of contributory negligence of the deceased was properly submitted to the jury.” Ill Miss, at 523-524, 71 So. at 811.

A private crossing open to and used by the public for a number of years imposes a duty upon the train crew and railroad company similar to that of a public crossing. In Illinois Central Railroad Co. v. McDaniel, 246 Miss. 600, 151 So.2d 805 (1963), cited in the dissent of Justice Hawkins, the private crossing had been open and used by the public for many years and, therefore, assumed the character of a public crossing. The Court said:

“It is argued, however, that the driveway involved in this action served only the church; that the public officials of the county did not maintain the driveway as a public road, and for the reasons thus stated the defendant Railroad Company and its engineer were under no duty to sound the statutory signals required by Section 7777, Miss. Code of 1942, Rec., as the train approached the crossing. But, whether the crossing is to be regarded as a public crossing or not, it was a crossing open to the public and used by the public for a period of approximately thirty years, with the assent and acquiescence of the Railroad Company. These facts were known to the members of the train crew, and it was the duty of the Railroad Company and its employees to give reasonable and timely warning of the approach of the train for the benefit of travelers at the crossing. Columbus & G. Ry. Co. v. Duease, 142 Miss. 713, 108 So. 151.” 246 Miss, at 619-620, 151 So.2d at 813.

In the case sub judice the statutory signals were not in question and the only issue presented to the jury was whether Illinois Central Gulf was negligent in failing to maintain and keep down the vegetation along its east right-of-way near the private crossing. Under the facts and law of this case, I agree with the majority opinion.

PATTERSON, C. J., and SUGG and BROOM, JJ., join this opinion.

HAWKINS, Justice,

dissenting:

I respectfully dissent from the majority opinion.

In the case of Illinois Central Railroad Company v. McDaniel, 246 Miss. 600, 151 So.2d 805 (1963), this Court held it was actionable negligence for a railroad company to permit the view of the driver of a motor vehicle at a private crossing to become obstructed by bushes and underbrush so as to become more than ordinarily dangerous. In this case, the engineer-fireman S. E. Smith admitted he had upon deposition deposed the view at the crossing was partially obstructed. Eddie Clark, a deputy sheriff, testified the grass and weeds were “head high” or better, and a motor vehicle would have to have its front bumper on the tracks for the driver to have an unobstructed view to the South of the crossing from which the train was approaching. Patricia J. Burns testified “you almost had to go across the track before you could see anything,” and the vegetation was very tall. She had made no measurement, but she testified when a driver of a car approaching the track, such driver would have to get real close before he could see anything at all. Mark Burns testified about the vegetation ten to fifteen feet South of the road at the crossing. Mrs. Cheryl C. Burns testified the crossing was overgrown, thick and weedy and bushy, and vision such that a driver could hardly see.

Candor compels the concession on my part that the weight of the evidence in this case was in favor of the appellants on this question of obstruction of view; indeed, I can even see some merit in arguing the verdict of the jury was against the overwhelming weight of the evidence (although I would not concur in that conclusion, either). The test of reversing and rendering, however, is taking all evidence offered by the plaintiffs and all reasonable inferences therefrom as true, and ignoring all conflicting testimony offered by the defendant, was a case for the jury made? The evidence in this case is plain, at least to me, that a jury issue was made on whether or not the view at the crossing was dangerously obstructed because of weeds, bushes, trees and undergrowth.

The testimony of Smith and F. B. Tinsley, the engineer, is also uncontradicted that the decedent driver never looked South towards the train as he drove upon the crossing. This might compel a directed verdict except for the fact both these witnesses were in the engine car of the train observing the driver of the motor vehicle from a distance of some several hundred feet. A jury was entitled to pass upon the weight and credibility of such testimony.

While I can readily agree with the majority photographs are among trial courts’ most helpful aids in arriving at the facts, I am unable to accord them infallibility. Furthermore, in this case photographs were introduced by both sides, and from an examination of them all, enough uncertainty exists that, coupled with the testimony offered by the plaintiffs, clearly made a jury issue, in my respectful opinion.

Finally, I must disagree with any implication in the majority opinion that the railroad owed the occupants of that vehicle on that fateful day no higher duty than is owed a trespasser or naked licensee, and could only be held liable for gross or wanton negligence. I do not believe this Court has ever so held as to a person in a motor vehicle on a crossing maintained by the railroad, whether public or private. It is my respectful opinion that the rule as to persons entering upon property of another is inapplicable to the occupants of a motor vehicle on a railroad maintained crossing, whether public or private. In such instance I think the railroad should be held to the same duty as the rest of mankind, and that is to use reasonable or ordinary care not to injure another.

BOWLING, Justice,

dissenting:

I join in the dissenting opinion of Justice Hawkins. My purpose in writing this supplemental dissenting opinion is to discuss the majority setting out a law that before appellees could recover, they had the burden of proving by a preponderance of the evidence that the appellant railroad company killed the deceased intentionally, wilfully or wantonly.

In my humble opinion, the people (including lawyers) of this state clearly should be advised as to the courtroom hurdle they face in these railway-road crossing collisions resulting in injuries and/or death. The railroad companies now have a license to kill when crossing a road out in the country that leads to a residence. The best way I know to explain what the majority is doing is to relate a hypothetical case, which along with hundreds of hypothetical cases easily could occur.

First, I should point out that in discussing the danger facing the people of the state, I am talking mainly about the rural areas which encompass the vast part of the state. I believe the majority would agree that there are not railroad crossings on the interstate highway system.

For clarification, may I assume a small town through which runs a mainline railroad track. The principal highway in the area may have at one time been the main highway, but now, because of the interstate system, is only the highway used by the residents of the town and of the countryside who shop and go to church in the town. I believe we can take further judicial knowledge that as the highway runs along one side of the railway line, there are many hundreds of so-called private crossings over the railroad line for the purpose of reaching the residences of people living in the area and other similar areas. Now let us assume two hypothetical situations which appear simple, and being told by a simple person, but are nevertheless true under the majority opinion.

The John Doe family and the Joe Roe family go to the same church in the town. The Roes live in town and the Does live in the country “across the railroad tracks,” the same as many of the neighbors, and the road only goes to that residence and surrounding land. The Does, living in the country, invited the Roes to supper. In that case, and under the majority opinion, when the Roes cross the railroad track, they are “invitees” and the railroad owes them a duty to use reasonable, proper and due care to prevent their injury and death.

Suppose then the next night, the Roes decide to drive out to the Does to solicit funds for the next Sunday School party. They have not been invited, and the Does do not know they are coming. They had rather watch T. V. Under the majority opinion, when they cross the railroad track the second night and are either injured or killed, it is necessary to prove by a preponderance of the evidence that the railroad did its damage intentionally, wilfully or wantonly. I am wholly unable to see any distinction. Members of the bar who keep up with prevailing trends in legal principles know that this situation is being corrected by judicial fiat in various parts of the country. I think it is time to do likewise here. All principles of law are based on the simple principle of “what is right.” The many books, pamphlets and other publications setting out this definition, if all were collected, would fill a library. I do not need to quote from any of them here. I respectfully submit that the difference in the two above-related hypothetical situations, as dictated by the majority opinion, just is not right.

Bringing the situation closer to the case before us, the deceased became a trespasser because he was going hunting west of the railroad line and the owner had not specifically invited him to do so. In the first place, the photographs show buildings on the west side of the railroad line to be reached by the “Gross Road” in question. The stigma of being a trespasser only applies to the land of the construction company situated somewhere west of the crossing. Its definite location is not specifically spelled out in the record. The majority 'opinion has to conclude positively that the deceased would have entered on the construction company’s land and proceeded to hunt. There is completely discounted the possibility that his car might have broken down immediately after clearing the west railroad track, or it could have become stuck, or the deceased even could have changed his mind and turned around and driven back across the track. Nevertheless, as he left home to go hunting on the construction company’s land, he immediately became a trespasser on the railroad track. I cannot reconcile my legal thinking in that direction.

A further fact regarding the railroad company’s appreciation of this public-private crossing is that it had placed a “whistle board” which required the engineer to blow his train whistle to warn persons approaching the crossing. Would a failure to blow the whistle, as required, be a wilful act toward a trespasser on the crossing or merely a negligent act, a duty not owed the deceased? Unfortunately, I cannot answer that question and for that reason and the other reasons hereinbefore set out, I respectfully dissent from the holding that it was reversible error not to require the widow and children of the deceased to prove that he was killed intentionally, wilfully or wantonly.