Louisville & NR Co. v. Tucker

• Decision Date: 08 March 1954
• Docket Number: No. 11840.,11840.
• Citation: 211 F.2d 325
• Parties: LOUISVILLE & N. R. CO. v. TUCKER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

211 F.2d 325 (1954)

LOUISVILLE & N. R. CO. v. TUCKER et al.

No. 11840.

United States Court of Appeals Sixth Circuit.

March 8, 1954.

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John B. Mack and Clarence Clifton, Memphis, Tenn., Clifton & Mack, Memphis, Tenn., of counsel, for appellant.

Hugh F. Carey, Jr., Memphis, Tenn., Harsh, Pierce, Cochran, Rickey & Carey, Memphis, Tenn., of counsel, for appellees.

Before SIMONS, Chief Judge and McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The appellees, who are the children and husband of the deceased, Elizabeth Tucker, recovered a judgment in the district court against the appellant, Louisville & Nashville Railroad Company, in the amount of $38,000 for damages on account of the death of Mrs. Tucker resulting from a railroad crossing accident. Appellant complains of erroneous rulings on questions of evidence, erroneous instructions by the trial judge, and the trial judge's action in overruling motions for a directed verdict in its favor.

The accident occurred on July 2, 1951, at about 11:20 p. m. on the Illinois Central Railroad Company's right-of-way where it was crossed by Milton Avenue in Memphis, Tennessee. A train operated by the appellant was proceeding northwardly. An automobile, owned and operated by Mrs. Charlotte Sawyer, was proceeding westwardly on Milton Avenue, which is about 20 feet wide and runs in an eastwardly and westwardly direction crossing the railroad right-of-way. The decedent, Mrs. Tucker, was a passenger in the car and was seated on the front seat next to Mrs. Sawyer. Another passenger, Mrs. Muth, was also on the front seat next to Mrs. Tucker. The three ladies had customarily played bridge at night weekly since February 1951, and on each occasion, following the bridge game, Mrs. Sawyer drove Mrs. Muth and Mrs. Tucker to their respective homes over the same route taken on the night of the accident. On the night in question, following the bridge game, the usual procedure was followed. In going over the Milton Avenue crossing Mrs. Sawyer's car was struck by the appellant's train, causing the death of both Mrs. Tucker and Mrs. Muth and causing serious injuries to Mrs. Sawyer.

The complaint filed by the appellees was directed against the Illinois Central Railroad Company in Counts I and II, against the appellant in Counts III and IV, and against Mrs. Sawyer in Counts V and VI. Before the trial, appellees dismissed their claim against Mrs. Sawyer. At the close of appellees' evidence, the Court dismissed the action against the Illinois Central Railroad Company, from which ruling no appeal has been taken. Count III directed against the appellant alleged common law negligence in the operation of the train. Count IV alleged violation of Section 2628(4) of the Tennessee Code, referred to as the "Look Out" Statute, and violations of Memphis ordinances limiting train speed in the City to 20 miles per hour and requiring the crossing to be flagged. Appellant denied the allegations of common law negligence; denied that the "Look Out" Statute was applicable under the conditions of the accident; claimed that if the statute was applicable it had fully complied with its requirements; denied violation of the Memphis ordinances; and alleged contributory negligence on the part of the decedent.

At the trial Mrs. Sawyer testified that she remembered approaching the crossing, that she travelled toward it at between 20 and 30 miles per hour, and that she took her foot off the gas and slacked her speed. She stated that she saw a blinding light from a car coming in the opposite direction as she was approaching the crossing. She did not remember if she stopped the automobile after she saw the blinding light, but testified that she was hit immediately thereafter. The brakes and lights of her car were in good condition and the car was under control. She remembered no conversation going on between the persons in the car and did not remember that Mrs. Tucker or Mrs. Muth ever called a warning to her or remonstrated about the way she was driving. There was a slightly misting rain and the windshield wipers were working on both sides of the windshield. The side windows were "cracked," but not rolled down. She was very familiar with the crossing. As she approached the crossing she saw no warning light, heard no bell or whistle, and saw nothing to make her believe there was a train approaching.

Mrs. Dupree testified that she was driving eastwardly on Milton Avenue but turned left into a driveway immediately before reaching the crossing. She saw a big light on the front of the engine but did not remember hearing a bell or whistle. The signal light was not working, and there was no flagman with a lantern. Immediately prior to the accident, as she turned into the driveway on the left, a car passed her on the right at a terrific rate of speed travelling east toward Mrs. Sawyer and passed over the crossing so closely in front of the engine that she thought it would be hit. She did not see Mrs. Sawyer's car. She testified that after the impact the train "was going better than twenty to twenty-five miles an hour, a fast rate."

Another witness testified that after the accident the automobile was 280 feet from the crossing, and that running at a rate of 15 miles per hour the train could have stopped in 40 feet.

The engineer, who was on the west side of the engine, saw no such car cross in front of his engine. A switchman on the engine looking down the tracks stated that no car going eastwardly crossed in front of the engine at Milton Avenue. The fireman on the east side of the engine stated that no eastbound automobile passed over the crossing.

Lavina Wilson, a witness for the appellant, lived on the northeast corner of the crossing and was looking out of a south window on to the crossing at the time of the accident. She saw the engine with its light burning approaching the crossing and heard its whistle. She also heard bells ringing at the crossing which had been newly installed. She saw an automobile going west on Milton Avenue which did not stop as it entered onto the track. She stated "but it did not stop. And the next thing I heard was a big noise and I knowed it had hit it. * * *" And "the train and the automobile got to the crossing about the same time."

The testimony of the train crew was that a switch engine and the six cars were moving north, the engine being in a backward position pulling the cut of cars. Its headlight was shining, the bell was ringing, the whistle was blowing, and there was a lookout ahead. It was travelling about 15 miles per hour as it approached the Milton Avenue crossing. Mrs. Sawyer's car was seen for the first time as it came past a store on Milton Avenue which was about 50 feet from the crossing, at which time the engine was about 20 feet south of the middle part of Milton Avenue. The automobile was travelling about from 40 to 45 miles per hour. Just as soon as the fireman saw the car he yelled at once to the engineer who immediately put on all the brakes. He stated that when he first saw the car he realized then that at the rate of speed it was coming it was not going to stop, and that there was going to be an impact. He also testified that the automobile was never on the track until the engine hit it, the collision occurring about the middle of the crossing, but admitted on cross-examination that the engine went from a point about 20 feet south of the middle of Milton Avenue to approximately the point of impact before the emergency brake was applied.

The trial judge overruled appellant's motion for a directed verdict at the close of appellees' proof and also at the close of all the proof. The case was submitted to the jury following the Court's instructions and the jury returned a verdict for $38,000.

The Tennessee "Look Out" Statute, Section 2628(4), Tennessee Code, provides as follows:

"Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident."

The question of liability under the statute was submitted to the jury. The appellant contends that the Court erred in so doing, because the Statute was not applicable in that the uncontradicted evidence showed that the automobile was not an "obstruction" on the track and that it appeared so suddenly it was impossible to comply with the section, and, in any event, the statutory precautions were observed. Gaines v. Tennessee Central R. Co., 175 Tenn. 389, 135 S.W. 2d 441.

There are many Tennessee cases construing and applying this statute, from which the following principles appear well settled. The provisions of the statute are imperative and mandatory and require absolute obedience, and it is no defense on the part of the railroad that the accident would have occurred even if the statutory precautions had been observed. Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 420, 58 S.W. 737; Alabama Great Southern Ry. Co. v. Brookshire, 6 Cir., 166 F.2d 278. "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." Majestic v. Louisville & N. R. Co., 6 Cir., 147 F.2d 621, 624-625; Union Traction Co. v. Todd, 16 Tenn.App. 200, 64 S.W. 2d 26. If the automobile appears as an obstruction on the track too late to permit those on the engine to blow the...