Perry v. Gulf, Mobile & Ohio R. Co.

Decision Date22 August 1974
Docket NumberNo. 73-2261,73-2261
Citation502 F.2d 1144
PartiesMonte Kay PERRY, Plaintiff-Appellant, v. GULF, MOBILE & OHIO RAILROAD COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Oliver B. Dickins, Jr., Nashville, Tenn., for appellant; Charles R. Terry, Morristown, Tenn., Harold R. Gunn, Humbolt, Tenn., on brief.

Sidney W. Spragins, Spragins, Menzies & Rainey, Jackson, Tenn., on brief for appellee.

Before WEICK, LIVELY and ENGEL, Circuit Judges.

PER CURIAM.

Plaintiff-appellant brought this diversity action in the district court below to recover damages for the claimed wrongful death of her husband, William Frank Perry. Perry was killed on September 3, 1971 when an automobile he was driving collided with a Gulf, Mobile and Ohio Railroad Company freight locomotive at a crossing located within the city limits of Dyer, a community of about 2,000 in Gibson County, Tennessee.

The case was tried to a jury which returned a verdict in favor of plaintiff-appellant in the amount of $25,000. The jury also answered interrogatories in the form of a special verdict, in which it indicated that it found both the railroad and the decedent to be guilty of negligence, at the same time finding the negligence of the railroad to be proximate while finding that of the decedent to be merely remote. Under Tennessee law, proximate contributory negligence bars recovery completely; remote contributory negligence only mitigates damages. Frankenburg v. Southern Railway Co., 424 F.2d 507 (6th Cir. 1970).

Following the jury verdict, defendant railroad moved for judgment notwithstanding the verdict, under Federal Rules of Civil Procedure 50(b). The trial court granted the motion and entered judgment for defendant, ruling that the evidence showed the deceased to have been guilty of proximate contributory negligence as a matter of law, thereby precluding any recovery by plaintiff. On appeal, Monte Kay Perry claims that the trial court erred in granting the motion for judgment notwithstanding the verdict and that the trial judge erroneously instructed the jury as to the Tennessee law of contributory negligence. She seeks reversal and a new trial, or in the alternative a reinstatement of the jury verdict.

In ruling upon the motion for judgment notwithstanding the verdict, the trial court was obliged to consider the evidence in the light most favorable to the plaintiff, and to allow all reasonable inferences to sustain the verdict. Wallace v. Louisville & Nashville Railroad Company, 332 F.2d 97 (6th Cir. 1964); Clinchfield R.R. Co. v. Forbes, 57 Tenn.App. 174, 417 S.W.2d 210 (1966); Poe v. Atlantic Coast Line Railroad Co., 205 Tenn. 276, 326 S.W.2d 461 (1959).

The evidence showed that the collision occurred at eight o'clock in the morning at the intersection of the 'Gin' road and the railroad tracks in Dyer. An earlier rain had by that time turned to mist, and the locomotive's lights and wipers were on. The train had approached the crossing from the north at a speed of between twenty-five and thirty miles per hour. Alvin W. Hawks, engineer in charge of defendant's train, was the sole surviving eye witness to the accident. He testified that he first observed Perry's vehicle when the train was about thirty feet from the intersection at which time the automobile was not more than ten feet from the tracks. Hawks immediately applied the brakes of the train, but probably not until after impact. Perry was killed instantly. No skid marks were observed at the crossing after the accident. It was the uncontradicted testimony of the engineer as well as two independent witnesses that the train's bell had been ringing and its whistle blowing within the city limits of Dyer for approximately one mile before the train reached the crossing.

Plaintiff's decedent, a twenty-one year old agricultural worker, had resided in Gibson County most of his life. He was familiar with the South Street crossing and had used it frequently. The vicinity of the collision scene was quite clearly described in the testimony and illustrated by photographs received in evidence. The crossing was marked by the familiar cross-buck, the view of which from the road and the tracks was unobstructed. The only obstruction to the view of an automobile driver, approaching from the west, was the presence of out-buildings (bean bins) which were situated on the right-of-way between 300 and 400 feet to the north of the crossing and approximately 75 feet west of the tracks. This did in fact interfere somewhat with the vision of both approaching trains and motor vehicles, but upon reaching a point thirty or forty feet from the crossing, the view opened up, and at twenty-five feet from the tracks there was an unobstructed view to the north along the tracks for about 500 feet.

The trial court, in granting the judgment n.o.v. found that the only negligent act that could reasonably have been charged to the railroad under the circumstances was unreasonable speed. The City of Dyer had passed an ordinance the previous May limiting the speed of trains operating within the city to twenty-five miles per hour, although no notice of the passage of the ordinance had been given the railroad, nor had the speed limit been posted. Nevertheless, we assume for the purposes here, as did the trial judge, that there was evidence from which the jury could have found that the railroad was guilty of negligence which was a proximate cause of the accident.

Much of the discussion before the trial judge and before us on appeal has involved the question of whether the provisions of T.C.A. 59-845 1 can be employed as a basis for finding the plaintiff's decedent guilty of contributory negligence per se, in view of T.C.A. 59-846 which provides in part that:

'None of the provisions of this section or 59-845, 59-847 shall be construed as abridging or in any way affecting the common law right of recovery of litigants in damage suits that may be pending or brought against any railroad company or other common carrier.'

We do not reach this question because we find that in any event the district judge's decision is amply supported by common law concepts consistently recognized by Tennessee courts. 2

The basic common law rule is stated in Hurt v....

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  • MacDonald v. General Motors Corp.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • 13 Febrero 1992
    ...contributory negligence bars recovery completely, remote contributory negligence only mitigates damages. Perry v. Gulf, Mobile & Ohio R. Co., 502 F.2d 1144, 1145 (6th Cir.1974) (applying Tennessee 5 The "crashworthiness" doctrine refers to liability for negligence that has caused injuries b......
  • Hartzler v. Licking County Humane Soc., C2-88-884.
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    • 29 Junio 1990
    ...Corp., 523 F.2d 102, 109 (6th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1113, 47 L.Ed.2d 318 (1976); Perry v. Gulf, Mobil & Ohio R.R., 502 F.2d 1144 (6th Cir.1974). A law officer who obtains an invalid search warrant by making material false statements in the warrant affidavit, either......
  • Ins. Co. of North America v. United States
    • United States
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    • 9 Diciembre 1981
    ...the trier of fact.'"4 Proximate contributory negligence on the part of the plaintiff bars recovery completely, Perry v. Gulf, Mobile & Ohio R.R. Co., 502 F.2d 1144 (6th Cir. 1974). The court held that violation of a statute or municipal ordinance is negligence per se in Tennessee, Alex v. A......
  • Portage II v. Bryant Petroleum Corp.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 7 Junio 1990
    ...Corp., 523 F.2d 102, 109 (6th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1113, 47 L.Ed.2d 318 (1976); Perry v. Gulf, Mobile & Ohio R.R., 502 F.2d 1144 (6th Cir.1974). In the present case, Simm never moved for a directed verdict; therefore he failed to secure his right to move for a jud......
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