Cincinnati, N.O. & T.P. Ry. Co. v. Garrett

• Decision Date: 08 July 1941
• Citation: 154 S.W.2d 435,25 Tenn.App. 173
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. GARRETT.
• Court: Tennessee Court of Appeals

154 S.W.2d 435

25 Tenn.App. 173

CINCINNATI, N. O. & T. P. RY. CO. v. GARRETT.

Court of Appeals of Tennessee, Eastern Section.

July 8, 1941

Certiorari Denied by Supreme Court October 4, 1941.

Appeal in Error from Circuit Court, Scott County; H. B. Brown Judge.

Action by Emma L. Garrett, administratrix, against the Cincinnati New Orleans & Texas Pacific Railway Company to recover damages for the wrongful death of plaintiff's husband. From a judgment in favor of plaintiff, defendant appeals in error.

Verdict in favor of defendant directed and suit ordered dismissed.

D. O Harris and R. L. Tindall, both of Harriman, for plaintiff in error.

Jeffers & Jeffers, of Oneida, and Pope & Pope, of Knoxville, for defendant in error.

PORTRUM Judge.

This action was brought by the widow, Mrs. Emma L. Garrett, administratrix of the estate of her deceased husband, David Garrett, for damages in the sum of $2,999 which she claims is due her for the wrongful death of her husband on November 23, 1939, against the defendant Railway Company, her declaration contains two counts; the first being a common law count and the second a statutory count based upon the failure of the railway to perform the statutory requirements.

The common law allegations as contained in the first count are these:

"She states that at Winfield, in Scott County, Tennessee, there was maintained by defendant on the occasion of his wrongful death, a public road crossing at grade and the tracks of this defendant, Railway Company, cross said county highway at an oblique angle, and that just beyond said public road crossing, the tracks of this defendant made an abrupt turn and to the public road crossing, the tracks of this defendant made an abrupt turn and to the public approaching said grade crossing from the west side towards the east side of said tracks, as her decedent was doing when killed by defendant's train, defendant had wrongfully caused or permitted, suffered and allowed large stacks of lumber to be stacked along said right-of-way, so that said obstruction cut off the view of those who approached said railroad track on said grade crossing from west to east and the trains could not be seen, for that reason, until the public were almost on the crossing itself and the train would be so close to said road crossing as to make it extremely dangerous and hazardous to the public. In fact, said obstruction presented and made it a 'blind crossing' for those who approached it from the west to east, and the defendant owed to decedent the duty to take extra precautions in operating its trains over said crossing and to give timely warning with steam whistle or bell on said engine or by some other device as said trains approached said public road crossing, and all of which defendant on this occasion failed and neglected to do, and as her decedent came upon said crossing in his automobile from the west side of said track going to the cast side thereof, without any notice or warning of said engine and train, as it proceeded southward his automobile was hit, struck and hurled into the air a distance of many feet, thereby and as a direct result thereof, so crushed, mangled and broke his limbs, body, head and chest, as that he presently died therefrom and as a direct result thereof.

"*** That said train of the defendant was being operated at an exceedingly high and dangerous rate of speed of more than 60 miles per hour, and those in charge of said train on said occasion were not keeping any effective or other lookout ahead for obstructions upon said track at said public road crossing, as was their duty, and all of which negligence, and careless acts in operation of said south bound train, commingling and cooperating the one with the other, was the direct, prime, and proximate cause of the collision of said agent and train with the automobile of her decedent and his subsequent death, but for which same would not have happened. ***"

The second count of the declaration was grounded upon the railroad precaution statute, Code, Section 2628, subsections 1, 2, and 4, subsections 1 and 2 having reference to grade crossings, requiring a whistle or ringing of a bell to give warning of the approach of the train. Subsection 1 reads as follows: "The overseers of every public road crossed by a railroad shall place at each crossing a sign, marked as provided by section 2659, below; and the county court shall appropriate money to defray the expenses of said signs; and no engine driver shall be compelled to blow the whistle or ring the bell at any crossing, unless it is so designated."

The fourth subsection requires "lookout ahead; alarm whistle to be sounded, and all means employed to stop train, when" an obstruction appears upon the track ahead.

The statutory count of the declaration was abandoned in the lower court upon the trial of the case, and could be ignored but for the fact that the Railway Company, having proved that this public crossing had not been marked as provided by the statute and as a consequence "no engine driver shall be compelled to blow the whistle or ring the bell at any crossing, unless it is so designated." The company relies upon this provision of the statute as a defense to the common law count since it is relieved by statute of the duty to give warning of the approach of a train to a crossing where the public road is not so designated as required by statute.

The plaintiff must always plead a statutory provision to rely upon the statutory remedy. Why then should not the defendant be required to plead the statutory exemptions in order to rely upon them? Especially when the plaintiff having plead the statute and then abandoned it, leaving only the common law count. Defendant plead the general issue of not guilty.

The statute above quoted is a reenactment by the Code of 1932 of a statute, chapter 94 of the Acts of 1855-56, and certain chapter had been repealed by implication by chapter 133 of the Acts of 1923, but as stated the Code of 1932 restored chapter 94 as modified by chapter 133, 1923, making apropos the construction given the Acts 1855-56, chapter 94, by the courts prior to the modification made in 1923 by chapter 133. Southern Railway Co. v. Whaley, 170 Tenn. 668, 98 S.W.2d 1061. Prior to the said modification, the courts had construed the statute and held where the public road was not designated by the county officials as required by statute the active statutory precautions were not applicable, and the statute expressly relieves the driver from blowing the whistle or ringing the bell at any crossing not so designated. Graves v. Illinois Cent. Railroad Co., 126 Tenn. 148, 148 S.W. 239; Middle Tennessee Railroad Co. v. McMillan, 134 Tenn. 490, 494, 184 S.W. 20; Hurt v. Yazoo & M. V. Railroad,

140 Tenn. 623, 636, 205 S.W. 437; Steele v. Louisville & N. Railroad Co., 154 Tenn. 208, 285 S.W. 582, 583.

In the Steele case, supra, in construing the statute the court said: "In many counties of the state there was no overseer to erect the crossing signs required by statute, in the absence of which no locomotive engineer owed any duty, not even under the common law [italics supplied], to sound the whistle or bell to warn those near road crossing of the approaching train."

The courts having held that subsections 1 and 2 being in derogation of the common law, the statute repealed the common law, and abolished the common law duty to give warning to the approach of the train to the crossing, the sole duties required being those defined by the statute. Graves v. Illinois Cent. R. Co., supra; Whittaker v. Louisville & N. Railroad Co., 132 Tenn. 576, 179 S.W. 140; Hurt v. Yazoo & M. V. Railroad Co., 140 Tenn. 623, 205 S.W. 437; Stem v. Nashville Interurban Railway, 142 Tenn. 494, 221 S.W. 192.

Upon these constructions of the statute, defendant relied upon an absolute exemption afforded it under the provision of the statute from blowing the whistle or ringing the bell at undesignated grade crossings under any and all circumstances. That the statute having abrogated the common law, then the remedy is confined solely to the statutory remedy. This contention has been the burden of the brief and argument in this case of both the parties, one asserting the position and the other denying it.

This court construes this statute giving immunity in certain instances to the defendant as not a license to commit other acts of common law negligence, and in the absence of other acts of common law negligence it is not negligence on the part of the Railway Company to run over an unmarked public grade crossing without giving warning of the approach by ringing the bell or blowing the whistle. To illustrate: The plaintiff must show an act of proximate negligence upon the defendant before she can recover; it is not negligence for the company to operate its train over its tracks, but if she establishes that the grade crossing statute was not complied with, she has shown negligence entitling her to recover if proximate. But if she fails to establish that the public road crossing was designated as provided by the statute, then she failed in this instance to show negligence entitling her to recover. However, if she goes further and establishes that the Railway Company has committed other common law acts of negligence which are proximate and which require a warning to protect the public against these other common law negligent acts, then it is incumbent upon the company to give the warning by ringing the bell or blowing the whistle, and the statute does not exempt the company from this additional warning. This is the construction given the statute in the case of Stem v. Nashville Interurban Railway, supra. The court reviewing the case of Graves v. Illinois Cent. Railroad Co., sup...