Majestic v. Louisville & NR Co.

Decision Date16 February 1945
Docket NumberNo. 9771.,9771.
Citation147 F.2d 621
PartiesMAJESTIC v. LOUISVILLE & N. R. CO.
CourtU.S. Court of Appeals — Sixth Circuit

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Walter P. Armstrong, of Memphis, Tenn., for appellant.

Henry J. Livingston, of Memphis, Tenn. (Clarence E. Clifton, of Memphis, Tenn., on the brief), for appellee.

Before ALLEN, HAMILTON, and McALLISTER, Circuit Judges.

HAMILTON, Circuit Judge.

On April 3, 1943, appellant, while driving a Chevrolet pick-up truck on Holmes Street in Memphis, Tennessee, at a grade railroad crossing of appellee, was struck by a locomotive and seriously injured. From a judgment in favor of appellee, appellant appeals.

The points urged are alleged errors in the charge and alleged erroneous admission of one item of evidence. Appellant grounded his suit on common law negligence, violation of the statutes of Tennessee and ordinances of the city of Memphis.

So far as material to the issues, the facts show that appellant was employed by the United States Government as an inspector on the construction of an Army Air Depot project in the city of Memphis, Tennessee. The project was adjacent to the right-of-way of appellant, its principal ingress and egress being Holmes Street, a public thoroughfare in the city of Memphis.

Appellee's railroad tracks cross Holmes Street near the entrance to the Government's Air Depot and the crossing carried heavy vehicular traffic at the time of the accident. The crossing was without gate or flagman protection, but had a flashing signal light without a bell, which some of the evidence indicates was not then working.

About 8:30 o'clock a.m., on April 3, 1943, appellant in the course of his employment was driving a pick-up truck on Holmes Street about 150 to 175 feet from the crossing. Another inspector was riding with him. The evidence as to the accident is conflicting, some of it showing that as appellant approached the crossing with his back partly towards the trains approaching from the west, he stopped, looked and listened and saw no flashing light, heard no warning sound and saw no train. Also that the view of trains from the west was so obscured by physical structures and freight cars on the railroad side tracks that a train could not be seen until the front of the truck had gotten to a point approaching the tracks where a locomotive, if on the crossing, would strike it.

As appellant started the truck forward, after stopping for observation, and when he got onto the crossing, he saw a locomotive coming from the west at high speed and in his resultant excitement he stalled the motor and, while in the act of getting out of the car on the side from which the train was coming, he was struck.

The engineer in charge of the train testified it was traveling at a speed of approximately 18 miles an hour and that he was looking out ahead and saw appellant approaching the crossing on Holmes Street about 100 feet from it and that the engine at that time was about 175 feet from the crossing. He stated that the automobile moved toward the crossing without changing speed and did not slow down until it got across the first rail, where it stopped and rolled back about two feet and stopped again. The engine was then about 75 feet from the automobile. He stated that he did not then apply his emergency brakes because appellant had a chance to get away and that he could have gotten away as he had sufficient time. He stated that when the train got about 50 feet from appellant's automobile, he saw it was not going to move on so he applied his emergency brakes and blew the alarm whistle. The engineer also stated he commenced sounding the usual crossing signal, two longs, a short and a long whistle, about 300 feet from the crossing and that after the automobile was struck the train moved about 160 feet before stopping.

The Railroad Precautions Act of the State of Tennessee provides for the sounding of a whistle or bell at every public designated crossing; that an engineer, fireman or some other person shall be on the locomotive and always on the lookout ahead and when any person, animal or obstruction appears upon the track, the alarm whistle shall be sounded, the brakes put down and every possible means used to stop the train and prevent an accident. Tennessee Code 1932, Sections 2628, 2629, 2630.

The Tennessee Supreme Court has construed the statute to mean that every Railroad Company failing to observe its requirements shall be responsible for all damages to persons or property occasioned by or resulting from any accident or collision that may occur, unless the railroad shows that the precautions are observed. Louisville & N. R. v. Gardner, 69 Tenn. 690, 1 Lea. 690. This construction must be followed even if hardship results or absurdity ensues because the language of the statute is explicit and certain and can be given no other meaning and contributory negligence of the person injured does not excuse a strict compliance with the statute. However, the onus of the statute is lifted when the railroad shows it had done all that it was required to do thereunder, and that the accident was unavoidable. But, when impossibility and unavoidableness arise out of the default of the railroad, liability still exists.

The statute does not brook speculation or conjecture, even of the slightest, of the agents in charge of a train as to the probability or possibility of the effect of neglecting to observe any of the precautions contained therein. It demands an absolute obedience to its provisions whether they seem necessary or not. Chattanooga Rapid Transit Company v. Walton, 105 Tenn. 415, 21 Pick. 415, 58 S.W. 737.

The duties of those in charge of a train to observe the requirements of the statute are not confined to the very time the accident occurs. They commence when the obstruction "appears" upon the road and "the road", in contemplation of the statute, is not merely what is called strictly the roadbed or track, but also includes the public approaches thereto and it is the duty of the lookout to view the whole road within the orbit of his vision. Nashville & Chattanooga R. Co. v. Anthony, 69 Tenn. 516, 520, 1 Lea. 516, 520.

The trial court read the statutes to the jury and stated generally the duties of train operatives under them in the light of the decisions of the Supreme Court of Tennessee, but did not define the statutory meaning of the word "obstruction."

At the conclusion of the general charge, the Judge stated that the parties had requested the court to instruct the jury specifically on certain phases of the law and that the instructions so given would be considered by the jury as additional law of the case. Among these special charges, the court gave the following at the request of appellee:

"If an automobile appears on the railroad track and is in motion so that the engineer reasonably presumes that the automobile will clear the track before the engine collides with it, then such automobile cannot be regarded as an obstruction so as to require the engineer to sound the alarm whistle, put down his brakes and use every other means to prevent a collision."

"In this case if you find that the plaintiff drove his automobile to a point near the railroad track and there stopped the same or so reduced the speed of the automobile as to show no intention of proceeding on to the track in front of the train then the defendant's employee upon the train who saw the plaintiff in this position would be entitled to assume that the plaintiff would not proceed to cross in front of the train and such operative would not be required to take any steps to stop the train or slacken its speed until the actions of the plaintiff indicated that he was about to proceed across the track."

Appellant complains of these instructions and we think the complaint is well grounded. Under the Tennessee decisions the word "obstruction" as used in the statute means that which may obstruct or hinder the free and safe passage of a train or that which may receive an injury or damage if run over by the train, as in the case of a person on the road or near enough to the railroad to be within striking distance of a train. One does not pass beyond striking distance so as to absolve the railroad company from complying with the statutes so long as he is sufficiently close to the road that having due regard for the instinct of self-preservation and the involuntary movements of the body there is still a reasonable probability or likelihood that he might fall or be thrown against the side or in front of the engine or train as it passes him, or be struck if traveling in a vehicle. Nashville & C. R. Co. v. Carroll, 53 Tenn. 347, 6 Heick. 347, 368; ...

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