Belcher v. Tennessee Cent. Ry. Co.

• Decision Date: 08 April 1964
• Citation: 18 McCanless 74,214 Tenn. 74,377 S.W.2d 928
• Parties: Homer BELCHER, Plaintiff in Error, v. TENNESSEE CENTRAL RAILWAY COMPANY, Defendant in Error. 18 McCanless 74, 214 Tenn. 74, 377 S.W.2d 928
• Court: Tennessee Supreme Court

Page 928

377 S.W.2d 928

Homer BELCHER, Plaintiff in Error, v. TENNESSEE CENTRAL RAILWAY COMPANY, Defendant in Error.

18 McCanless 74, 214 Tenn. 74, 377 S.W.2d 928

Supreme Court of Tennessee.

April 8, 1964.

Louis Chambers, David M. Harrison, Jr., Lebanon, for plaintiff in error.

William D. Baird, Willard Hagan, Lebanon, George M. Kevlin, Philadelphia, Pa., for defendant in error.

HOLMES, Justice.

This is an action for personal injuries brought by the plaintiff in error, Homer Belcher, against the defendant in error, Tennessee Central Railway Company. The parties hereinafter will be referred to according to their status in the Trial Court. The defendant filed a demurrer to plaintiff's declaration which was sustained by the Trial Judge. The plaintiff has perfected his appeal to his Court and filed assignments of error.

The declaration is in three counts. Count One of the declaration alleges in substance that on August 10, 1961 the plaintiff, as an employee of a subcontractor, was operating a tractor with a backhoe on one end and a bucket on the other, that he was digging a trench across State Highway 26 with the backhoe at a point about 1/2 mile west of the corporate limits of Watertown, Tennessee, where the defendant's railroad tracks cross Highway 26 at an oblique angle and run practically parallel with the highway, that at this place the defendant's tracks are within a few feet of the hard surface of the highway; that, while thus digging a trench across the highway within a few feet of the railroad crossing, a locomotive and train of cars of the defendant going toward Watertown negligently, carelessly and unlawfully ran into the bucket on the machine being operated by plaintiff and turned the tractor over, inflicting injuries on the plaintiff. It is alleged that the accident occurred between 9:30 and 10:00 o'clock A.M., that the defendant maintained signal lights at the crossing for the purpose of notifying the public of the approach of trains, that the defendant's tracks curved west of the crossing and there was undergrowth between the highway and the tracks, making it difficult for people on the highway where plaintiff was east of the crossing to see trains approaching the crossing from the west. The declaration alleges the defendant was guilty of the following acts of negligence which proximately caused the accident and resulting injury to the plaintiff:

'(1) That the defendant railway company was driving and operating its locomotive and train of cars at a fast, reckless and dangerous rate of speed. That the train was traveling so fast that it did not stop after the accident, until it had traveled about one-half mile to or near the corporate limits of Watertown, Tennessee.

'(2) That the defendant's electric signals or lighting system at said crossing did not work and did not give plaintiff notice and warning of the approach of the defendant's locomotive and train of cars. That defendant had a right to rely upon the notice to be given him by said lighting and signal devices at said crossing, and the same did not operate or function and give him said notice.

'(3) That defendant's locomotive and train of cars was not being operated, at the time of the accident, with reasonable and proper care and circumspection.

'(4) That the defendant's crew did not blow the whistle of the locomotive and ring its bell and give the proper notice of the approach of its fast moving train, so that plaintiff would have notice thereof and move the backhoe and bucket so that it would not be struck by defendant's locomotive and train of cars.'

Count Two of the declaration adopts the averments of Count One and alleges the defendant violated Subsection (3) of T.C.A. Sec. 65-1208, which provides that on approaching a city or town, the bell or whistle shall be sounded when the train is at a distance of one mile, and at short intervals till it reaches its depot or station.

By Count Three of the declaration, plaintiff alleges a violation of Subsection (4) of T.C.A. Sec. 65-1208 and pleads T.C.A. Sec. 65-1209, as amended by Chapter 130 of the Acts of 1959. Subsection (4) of T.C.A. Sec. 65-1208 provides that 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. T.C.A. Sec. 65-1209, as amended, makes the violation of any of the provisions of Section 65-1208 negligence per se and provides that the burden of proof on the issue of proximate cause and on the issue of contributory negligence shall be tried in the same manner and with the same effect as in the trial of other negligence actions under the common law in this state. This count of the declaration alleges:

'that it (the defendant) did not keep the engineer or fireman or some other person on the locomotive always on the look-out ahead, and that when the back-hoe and bucket thereon appeared as an obstruction upon the railroad track or within striking distance thereof, the alarm whistle was not sounded, the brakes were not put down and every possible means employed by the train crew to stop the train and prevent the collision and accident.'

Plaintiff, in this count, further alleges that the violation of this statute was a proximate cause of the accident and resulting injury to the plaintiff.

It is well settled in Tennessee that, when the sufficiency of a pleading is challenged by demurrer, the following rules are applicable:

A demurrer admits only facts that are well pleaded and reasonable inferences of fact but not deductions, inferences and conclusions of law. In re Eppinger's Estate, 207 Tenn. 53, 57, 336 S.W.2d 28, 30.

Mere allegations of legal conclusions without stating the ultimate facts are not admitted a demurrer. Cotton Oil Company v. Shamblin, 101 Tenn. 263, 47 S.W. 496; Crockett v. McLanahan, 109 Tenn. 517, 72 S.W. 950, 61 L.R.A 914; Ashworth v. Carnation Company, 190 Tenn. 274, 229 S.W.2d 337.

Every reasonable intendment must be made in favor of a pleading when it is challenged by demurrer. Jackson v. B. Lowenstein & Bros., Inc., 175 Tenn. 535, 136 S.W.2d 495. Henderson v. Lawrence, 212 Tenn. ----, 369 S.W.2d 553.

By statute in Tennessee, T.C.A. Sec. 20-702: 'Any pleading possessing the following requisites is sufficient: (1) When it conveys a reasonable certainty of meaning; (2) when, by a fair and natural construction, it shows a substantial cause of action or defense.'

In Gerwin v. American News Co., 197 Tenn. 51, 54, 270 S.W.2d 354, 356, the Court stated:

'Facts material to a cause of action, or to a defense of such a cause, are of two kinds, to-wit, (1) ultimate facts and (2) probative facts. Ultimate facts are those essential to the maintenance of the cause of action, or determinative as a successful defense. * * * Probative facts are 'merely matters of evidence required to prove the ultimate facts'. * * *

'It is a fundamental rule of pleading that ultimate facts, as above defined, must be plead, but that which is mere evidence to establish the ultimate fact (probative facts) should not be plead.'

The three elements necessary to the existence of a cause of action for negligence are: (1) a duty of care owed by the defendant to the plaintiff; (2) a failure on the part of the defendant to perform that duty; and (3) an injury to the plaintiff proximately resulting from the defendant's breach of that duty of care.

The fact that the plaintiff, under the averments of the declaration, may have been a trespasser does not relieve the defendant of a duty of care not to cause injury to him. This Court, speaking through Mr. Justice Lurton, in Patton, Adm'r, v. Railway Company, 89 Tenn. 370, 15 S.W. 919, 12 L.R.A. 184, stated:

'A railway company in the operation of its trains owes a duty to trespassers without regard to our statute. 'The rule is,' says Mr. Wood, after a consideration of this subject in the light of the decisions, 'that a railway company is bound to keep a reasonable lookout for trespassers upon its track, and is bound to exercise such care as the circumstances require to prevent injury." 376, 377 of 89 Tenn., 921 of 15 S.W., 12 L.R.A. 184.

'Obviously, if a person is seen upon the track, and so near as to be apparently in danger, the duty of the company, irrespective of the statute, would be to do all that was possible to prevent an accident, by giving an alarm, and stopping the train.' 374 of 89 Tenn., 920 of 15 S.W., 12 L.R.A. 184.

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