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

• Decision Date: 08 December 1928
• Citation: 12 S.W.2d 381,158 Tenn. 75
• Parties: CINCINNATI, N. O. & T. P. RY. CO. v. BROWN.
• Court: Tennessee Supreme Court

12 S.W.2d 381

158 Tenn. 75

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

Supreme Court of Tennessee.

December 8, 1928

Certiorari to Court of Appeals.

Action by Pearl Brown, as administratrix of the estate of John Brown, deceased, against the Cincinnati, New Orleans & Texas Pacific Railway Company. Judgment for the administratrix was affirmed by the Court of Appeals, and defendant brought certiorari. Reversed and dismissed.

H. M Carr, of Harriman, for plaintiff in error.

W. Y Boswell, of Oakdale, for defendant in error.

GREEN C.J.

This suit was brought by the widow and administratrix of John Brown, who was run over and killed by a train of the plaintiff in error. There was a judgment in favor of the administratrix in the trial court for $18,250. The Court of Appeals suggested a remittitur of $8,250, and, that being accepted, the judgment was affirmed for $10,000. Plaintiff in error filed a petition for certiorari, which was granted, and the case has been fully argued in this court.

The chief contention of plaintiff in error is that it was entitled to a directed verdict because (1) there was no evidence of negligence on its part, and (2) if there was negligence, the deceased assumed the risk. It is conceded that deceased was an employee of an interstate carrier engaged in interstate commerce at the time of his death, and that the Federal Employers' Liability Act (45 USCA §§ 51-59) controls.

The deceased, Brown, was a freight brakeman. On the night of the accident he was acting as rear brakeman on a freight train going north. His train had orders to take a siding at Helenwood, Tenn., to permit the passage of a fast passenger train, known as No. 14, also going north. Brown's train headed into the north passing track at a switch about half mile south of the depot at Helenwood. Another freight train was in this passing track ahead of Brown's train.

It was the duty of Brown after his train had passed into the siding to throw the switch so as to clear the main track. The proof indicates that he did this and walked across the north-bound main track upon which No. 14 was expected. There are four tracks at this point, the north-bound main track, the north passing track, the south-bound main track, and the south passing track.

Just about the time No. 14 passed the switch mentioned going north, a freight train passed this point going south. Brown was struck by the freight train while he was standing or walking on the south-bound main track. The proof does not disclose whether he was standing on the south-bound main track waiting for No. 14 to pass north, or whether he had crossed the south-bound main track to the south passing track and was returning to the switch to throw it and permit his train to back out on the north-bound main track.

Operating rule No. 104 for the trains of plaintiff in error is as follows: ""The normal position of a main track switch is set and locked for the main track, and employees must not unlock it, or stand within twenty feet of it while a train is approaching or passing; when practicable or safe they must take position on the opposite side of the track."

It is to be inferred from the proof that after Brown locked this switch, in compliance with the quoted rule, he undertook to take a position on the opposite side of the track from the switch until after No. 14 had passed. Proof indicates that there was a high bluff on the side of the passing track where the switch stood and that it would have been impracticable for Brown to have stood back from the switch on that side.

Brown was a man about 50 years of age. He had been employed on this line of road for many years, was a good railroad man, according to the testimony, and familiar with the roadway and the method of operating trains on this division.

Campbell, the engineer on the train that struck Brown, was introduced as a witness for the plaintiff below. The accident occurred about 4 a. m. April 27, 1925. Campbell said that it was a dark, foggy morning and he could not see any distance ahead of his engine. What is known as the block system is in operation on this line of road, the block signals being about half mile apart. Brown was struck by the engine about 20 or 30 feet south of one of these block signals. The engineer had his head out of the window looking for the block signal. He could not see it, on account of the fog, until he got right at it. About the same time, when he was about 30 feet distant, he saw Brown's light-or lantern of a man on the track ahead.

Campbell testified that he at once blew the alarm whistle and applied the brakes. He saw Brown and struck him almost at the same time. There were 33 cars in the freight train, and the train was brought to a stop after the caboose had passed some three or four car lengths beyond the body of Brown. Other pertinent facts will be developed in the course of the opinion.

All the proof tends to show that Campbell, on the freight train that struck Brown, blew the whistle of his engine, at an appropriate distance, for a road crossing between the station at Helenwood and the point of the accident. Also that Campbell blew the whistle as soon as he saw Brown and that he saw Brown as soon as he could have seen him in view of the prevailing fog. As we understand it, therefore, counsel for the administratrix does not now rely on any negligence in the matter of giving warning to the deceased of the approach of the freight train.

Counsel has summarized in his brief the various charges of negligence upon which he now rests the case of the administratrix.

He says that plaintiff in error was negligent in the operation of the train that killed Brown:

(1) In running the train at the time of the accident in violation of a rule that prohibits a speed for freight trains in excess of 30 miles an hour.

(2) In running the train in violation of a rule which requires that fixed signals, when obscured, must be approached under control and a stop made until it is known that the way is clear.

(3) In running the train between the station platform at Helenwood and a passenger train without exercising due caution, in violation of another rule.

(4) In running the train, an inferior class train and extra train, by and through the Helenwood station and yard without caution, in violation of a rule.

(5) In running the train down grade for more than 3 1/2 miles, through a station yard, over a grade crossing, by three trains already in the yard, over a fixed signal, through a dense fog, in violation of rules of the company and in disregard of the rules of common sense.

(6) In running the train in violation "of the outstanding and paramount rule of the company, the same being a general rule and on the front pages of the book of rules, which rule was 'Safety First." D'

The argument is that, had the train been proceeding with caution under the various rules mentioned, and as Brown had a right to expect any such train to approach him, there would have been opportunity for Brown to have been discovered and the train stopped before he was struck, or at least opportunity for Brown to have gotten out of the way, after warning was given.

Referring to the second specification of negligence, as to...