Baggett v. Louisville & N.R. Co.

• Decision Date: 30 August 1962
• Citation: 51 Tenn.App. 175,365 S.W.2d 902
• Parties: George F. BAGGETT, Plaintiff in Error, v. LOUISVILLE & NASHVILLE RAILROAD CO., Inc., Defendant in Error. Ruth BAGGETT, Plaintiff in Error, v. LOUISVILLE & NASHVILLE RAILROAD CO., Inc., Defendant in Error. 51 Tenn.App. 175, 365 S.W.2d 902
• Court: Tennessee Court of Appeals

Page 902

365 S.W.2d 902

George F. BAGGETT, Plaintiff in Error, v. LOUISVILLE & NASHVILLE RAILROAD CO., Inc., Defendant in Error.

Ruth BAGGETT, Plaintiff in Error, v. LOUISVILLE & NASHVILLE RAILROAD CO., Inc., Defendant in Error.

51 Tenn.App. 175, 365 S.W.2d 902

Court of Appeals of Tennessee, Western Section.

Aug. 30, 1962.

Certiorari Denied by Supreme Court Feb. 7, 1963.

Petition to Rehear on Certiorari Denied by Supreme Court

April 3, 1963.

[51 TENNAPP 177] Matherne & Matherne, Brownsville, for plaintiffs in error.

A. H. Gray, Brownsville, Hooker, Keeble, Dodson & Harris, Nashville, of counsel, for defendant in error.

BEJACH, Judge.

These consolidated causes involve appeals in error by George F. Baggett and Ruth Baggett, his wife, who were plaintiffs in the lower court, from judgments of dismissal granted on motion for new trial. The parties will be styled, as in the lower court, plaintiffs and defendant, or called by their respective names.

[51 TENNAPP 178] Plaintiff, George F. Baggett, had recovered a jury verdict for $7,871.69 for personal injuries and medical expenses, and an additional $275.00 for property damages; and plaintiff, Ruth Baggett, had recovered a verdict for $2,000 for personal injuries; but on motion for new trial made by defendant, the trial judge granted that motion, set aside these verdicts, and granted defendant's motion for a directed verdict as made at the conclusion of all the proof. A motion for directed verdict was made at the conclusion of all the proof. A motion for directed verdict had been made by defendant at the end of plaintiffs' proof, which was at that time overruled, as was the same motion made by defendant at the end of all the proof. After the sustaining of defendant's motion for directed verdict, when its motion for new trial was granted, plaintiffs moved for a new trial, which motion was overruled. Plaintiffs then filed, as ordered by the court, one bill of exceptions for the two cases and perfected their appeals in the nature of writs of error to this court. Here the plaintiffs' as plaintiffs in error, have filed two assignments of error. These assignments of error present the single question of whether or not the trial judge erred in granting defendant's motion for a directed verdict.

These consolidated causes grew out of a grade crossing collision on December 11, 1960 in the city of Brownsville, Tennessee. Plaintiffs were traveling south on Washington Street in that city in a 1950 model pickup truck when they were struck at approximately 10:00 o'clock A.M. by defendant's east bound passenger train out of Memphis which was running about 55 minutes late.

[51 TENNAPP 179] Plaintiffs' declarations are each in several counts. The first count of Mrs. Baggett's declaration alleges common law negligence on the part of defendant; the second count alleges violation of the Statutory Precautions Act, sections 65-1208 and 65-1209, T.C.A.; and the third count alleges violation of a Brownsville city ordinance which limits the speed of trains within the corporate limits of that city to 30 miles per hour. Mr. Baggett's declaration duplicates the three counts of Mrs. Baggett's declaration and adds six other counts, making nine in all. The six additional counts of Mr. Baggett's declaration claim damages for property loss and for medical expenses and loss of Mrs. Baggett's services.

In our opinion, these declarations may be treated as if alleging merely common law rights of action. By enactment of Chapter 130, Public Acts of 1959, the General Assembly of Tennessee has, in our opinion, converted causes of action for violation of the Statutory Precautions Act into mere common law rights of action. Prior to the enactment of that statute, causes of action arising out of violation of the Statutory Precautions Act were separate and distinct from common law causes of action based on the same facts, and had to be stated in separate counts of the plaintiff's declaration. Middle Tenn. R. Co. v. McMillan, 134 Tenn. 490, 184 S.W. 20. Before enactment of the 1959 statute, violation of the Statutory Precautions Act created a right of action for injuries sustained whether or not violation of the Statutory Precautions Act was the proximate cause. Illinois Cent. R. Co. v. Davis, 104 Tenn. 442, 58 S.W. 296; Graves v. Illinois Cent. R. Co., 126 Tenn. 148, 148 S.W. 239; Little v. Nashville, Chattanooga & St. Louis Ry. Co., 39 Tenn.App. 130, 142, 281 S.W.2d 284. Under the Statutory [51 TENNAPP 180] Precautions Act prior to the 1959 amendment, it constituted no defense to prove that the accident and injury would have occurred, even if the precautions required had been observed. Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 58 S.W. 737; Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S.W. 62; Graves v. Illinois Cent. R. Co., 126 Tenn. 148, 148 S.W. 239; Tennessee Cent. R. Co. v. Morgan, 132 Tenn. 1, 175 S.W. 1148; and Little v. Nashville Chattanooga & St. Louis Ry. Co., 39 Tenn.App. 130, 143, 281 S.W.2d 284. And even contributory negligence on the part of the injured person was not a complete defense, though it might go in mitigation of damages. Louisville & N. R. Co. v. Truett, 6 Cir., 111 F. 876; Rogers v. Cincinnati N. O., etc. R. Co., 6 Cir., 136 F. 573; Southern R. Co. v. Koger, 6 Cir., 219 F. 702; Southern Ry. Co. v. Brubeck, 6 Tenn.App. 493; and Little v. Nashville, Chattanooga & St. Louis R. Co., 39 Tenn.App. 130, 143, 281 S.W.2d 284. Chapter 130, Public Acts of 1959, provides, however, that violation of 65-1208, T.C.A. shall constitute merely negligence per se, with the burden of proof placed on the plaintiff. It repeals section 65-1210, T.C.A. which formerly placed the burden of proof on the Railway company. Even prior to Chapter 130, Public Acts of 1959, the counts which alleged violation of the city ordinance, might properly have been included in the common law counts. Little v. Nashville, Chattanooga & St. Louis Ry. Co., 39 Tenn.App. 130, 281 S.W.2d 284. Since the enactment of the 1959 statute, it will no longer be necessary, in our opinion, to have a separate count in a declaration charging violation of sections 65-1208 and 65-1209, T.C.A. Counsel for plaintiffs contend that the changes made by the 1959 Act are merely procedural in character. We cannot agree with [51 TENNAPP 181] that contention. In our opinion, the changes made are substantive in character and reduce causes of action arising out of violation of the Statutory Precautions Act to mere common law rights of action.

Since the question to be decided by this court is whether or not the trial court erred in granting defendants' motion for directed verdict, we must consider the evidence most strongly in favor of the plaintiff, taking as true that which tends to support their rights, discarding all countervailing evidence, and from the rest, allow all reasonable inferences in favor of plaintiffs. Spivey v. St. Thomas Hospital, 31 Tenn.App. 12, 211 S.W.2d 450; D. M. Rose & Co. v. Schneider, 185 Tenn. 499, 206 S.W.2d 897; City of Winchester v. Finchum, 201 Tenn. 604, 301 S.W.2d 341; Board of Mayor and Aldermen of Covington v. Moore, 33 Tenn.App. 561, 232 S.W.2d 410; Cherry v. Sampson, 34 Tenn.App. 29, 232 S.W.2d 610; Nashville, Chattanooga & St. Louis Ry. v. Crawford, 39 Tenn.App. 37, 281 S.W.2d 69; Callahan v. Town of Middleton, 41 Tenn.App. 21, 292 S.W.2d 501; Benson v. Fowler, 43 Tenn.App. 147, 306 S.W.2d 49.

In the light of the above cited authorities, we will refer only to proof favorable to plaintiffs' contentions or proof which presented issues to be determined by the jury, whether such proof was offered by the plaintiffs or by the defendant. Plaintiffs introduced seven witnesses and the defendants fifteen. Some of the facts were undisputed; but, even as to these, in some instances, different inferences might be drawn. The grade crossing over which plaintiffs undertook to pass was 23 1/2 feet wide, and Washington Street, at the crossing, 43 feet wide. As plaintiffs in their southbound vehicle approached the railroad track from the north, there were two converging[51 TENNAPP 182] switch or spur tracks, one of which goes back across the main line track west of the crossing. After crossing the switch tracks, the plaintiffs would reach the main line track on which the eastbound train was running. Traffic passing over the crossing has a good view, both to the east and to the west when approaching from the south, but southbound traffic, when standing at the stop sign, had the view to the right hand side, or west, obstructed by a warehouse or loading shed.

According to plaintiffs' surveyor and defendant's civil engineer, the shed on defendant's right of way north of the track and west of Washington Street, was 11 feet north of the nearest or most northern rail of the north spur track. Stopping at the stop sign going south, plaintiffs' surveyor testified that he had a view to the west for 170 feet; and plaintiffs each testified to an estimated view to the right of 150 feet. Plaintiff testified that there was a box car parked on the spur track alongside of the south side of the loading shed, in which testimony they were corroborated by plaintiff George Baggett's brother, Heiskell Baggett. Defendant offered evidence tending to show that there was no box car on the spur track, but this presented merely an issue of fact to be decided by the jury. Defendant's fireman testified that he first saw plaintiffs' pickup truck appear when the locomotive was 120 to 150 feet west of the crossing, and on cross examination, he reduced this distance of view to 120 to 130 feet. Defendant's locomotive engineer could not see the plaintiffs because he was on the opposite side of the cab.

Plaintiffs testified that the grade crossing was 'awful rough', and photographs offered in evidence by the defendant show that the space between the spur tracks and the main line track was rough. On cross examination, [51 TENNAPP 183] defendant's...