Clinchfield R. Co. v. Forbes, 19

• Decision Date: 02 December 1966
• Docket Number: No. 19,19
• Citation: 57 Tenn.App. 174,417 S.W.2d 210
• Parties: CLINCHFIELD RAILROAD COMPANY v. Robin FORBES.
• Court: Tennessee Court of Appeals

Page 210

417 S.W.2d 210

57 Tenn.App. 174

CLINCHFIELD RAILROAD COMPANY v. Robin FORBES.

No. 19.

Court of Appeals of Tennessee, Eastern Section.

Dec. 2, 1966 Certiorari Denied by Supreme Court June 5, 1967.

Wilson, Worley & Gamble, Kingsport, A. K. McIntyre, Erwin, for plaintiff in error.

Wright & Cate, Todd & Dossett, Kingsport, for defendant in error.

OPINION

PARROTT, Judge.

Robin Forbes brought this suit to recover for personal injuries allegedly sustained when an automobile driven by him collided with a switch engine of the defendant at the Tennessee Street crossing in Johnson City. The jury found in favor of Forbes and returned a verdict for $90,000. The Circuit Judge granted a $15,000 remittitur and judgment in the amount of $75,000 was entered against the defendant who perfected the present appeal.

The declaration in this case contained statutory and common law counts. At the close of all the proof the trial judge directed a verdict in favor of the defendant as to the statutory counts and the case was submitted to the jury solely on the common law count which alleged the railroad (1) failed to keep a proper lookout ahead, (2) failed to sound the whistle or ring the bell, and (3) the failure of the flashing signal lights at the crossing to properly operate.

The defendant railroad has appealed, insisting (1) there is no evidence of negligence on the railroad's part (2) plaintiff was guilty of contributory negligence, (3) the court erred in admitting into evidence a professional football contract signed by the plaintiff, (4) the court erred in its charge to the jury, and (5) the judgment is excessive.

As to the court's failure to direct a verdict in favor of the defendant, it has been often pointed out that the propriety of directing a verdict depends upon whether there is material and competent evidence which, if believed and viewed in the light most favorable to the plaintiff, supports the plaintiff's cause of action as set forth in the declaration. No question of the credibility of witnesses is involved and every inference reasonably to be drawn from the evidence must be resolved in favor of the plaintiff.

In resolving the question of plaintiff's contributory negligence as well as the question of defendant's negligence, we must be governed by the rule so clearly stated in D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897, as follows:

"While these issues involve a review of the evidence, such review is not to determine where the truth lies or to find the facts, that not being our province in jury cases. It is only to determine whether there was any substantial evidence to support the verdict; and it must be governed by the rule, safeguarding the constitutional right of trial by jury, which requires us to take the strongest legitimate view of all the evidence to uphold the verdict, to assume the truth of all that tends to support it, to discard all to the contrary, and to allow all reasonable inferences to sustain the verdict. Johnston v. Cincinnati N.O. & T.P.R. Co., 146 Tenn. 135, 149, 240 S.W. 429; Finchem v. Oman, 18 Tenn.App. 40, 49, 50, 72 S.W.2d 564, 570."

In Poole v. First Natl. Bank of Smyrna, 29 Tenn.App. 327, 196 S.W.2d 563, as well as many other cases, this Court stated:

'The credibility of witnesses is peculiarly a question for the jury, and in determining a motion for a directed verdict the judge has no right to determine the question of the credibility of any witness.'

Keeping in mind the above rules and authorities, let us consider the evidence in this case.

The accident occurred on March 6, 1965, at about 7:30 p.m. in Johnson City at the Tennessee Street crossing. It was dark and cold with a light snow falling. The grade crossing consists of five railroad tracks running in a north-south direction. Defendant's switch engine (without any cars attached) was traveling in a southerly direction at approximately ten to fifteen miles per hour. Tennessee Street runs in a general east-west direction and intersects the railroad at approximately a right angle. Plaintiff's car was approaching from the east and the collision occurred on the fourth track from the east.

This crossing is protected by an electrically operated signal which flashes red lights and rings a bell to warn motorists of an approaching train. On the east side of the crossing this signal is located some 23 feet from the first track. These signals are activated by the engine passing over an apparatus placed on the track 146 feet from the crossing.

Mr. Forbes testified he stopped before crossing the first track, looked both ways, did not see the flashing signal lights nor did he hear the bell or whistle of the engine. He proceeded in low gear and just before reaching the fourth track, his passenger, Jerry White, saw the approaching train and attempted to warn Forbes but there was not time to stop the car. Mr. Forbes never saw the engine until the impact.

Mr. White corroborated Forbes' testimony as to his stopping, looking, that the signals were not working and neither did he hear a bell or whistle.

Further corroborating evidence that these signals were not working is the testimony of Vance Randall and Margaret Brown, students at East Tennessee State University, who were approaching from the opposite direction as the plaintiff. It was their testimony that they pulled up across the first track, observed the engine and then backed up to a safe distance to let it pass. Miss Brown testified the signals did not start working until just at the time of the impact. Neither of these witnesses heard the bell or whistle.

The members of the train crew testified that some 30 minutes prior to the accident they had gone over this crossing and that the signals were working. At the time of this collision two of the train crew were on the back of the engine and could not see the signals. The fireman was riding in the engineer's seat on the right side and could not see the approaching car but did testify the signals were working.

Mr. Lewis, the engineer, was riding on the left side of the engine and would not say whether the electric warning signals were working or not. His reason for not seeing the signal was that he was watching the Forbes car. He first saw the lights of the car more than 200 feet away from the crossing with the car actually coming into his view as it emerged from behind a billboard and some large gas tanks several feet away from the first track. He saw the car come by the signal light and as the car approached the first set of tracks, he called to the fireman, 'Easy, Ed, easy,' who applied the brake to slow the engine down. At this time the engine was traveling approximately 10 miles per hour with the car going at a slower speed. As the car crossed the second track, Mr. Lewis yelled to the fireman, 'Shoot 'em,' meaning for the emergency brakes of the engine to be put on. At the time the emergency brakes were applied, the engine was 15 to 25 feet from the crossing. After the impact the engine came to a stop, blocking two-thirds of the crossing.

The members of the train crew testified the whistle was blowing and the bell ringing as the engine approached the crossing. It appears to be undisputed that the headlights and other lights of the engine were on.

In this evidence we have a sharp dispute as to whether or not the electric warning signal was working at the time Forbes approached the crossing. Also disputed is whether the bell and whistle were being sounded.

In our opinion the trial judge properly refused to direct a verdict for the defendant upon its insistence it was guilty of no negligence and that the plaintiff was guilty of contributory negligence. From this evidence the jury could have determined the bell and whistle were not sounding and also that the automatic signal lights did not come on until after Forbes had entered upon the tracks. In our opinion the minds of reasonable men could differ as to whether or not engineer Lewis used the proper degree of care commensurate with the circumstances. Mr. Lewis testified he saw the Forbes car long before it reached the tracks. Although he was looking in the direction of the automatic signal, he did not know whether it was working. He never called for full brakes on the engine until the car had crossed over two sets of tracks.

As to the failure of the Court to direct a verdict on the ground plaintiff was guilty of contributory negligence, plaintiff did look before entering the crossing and, even though he did not rely on the fact that the signals were not on, his contributory negligence was a question for the jury. Since it was dark and snow was falling, plaintiff is not chargeable as a matter of law with failure to see the train as in Union Railway Co. v. Jinks, Tenn.App., 402 S.W.2d 495, and other cases like it.

In the case of Gaines v. Tennessee Central Railroad Co., 175 Tenn. 389, 135 S.W.2d 441, which is very similar to the present case, our Supreme Court said:

'In the late case of Southern Railway Co. v. Penley, 175 Tenn. 380, 134 S.W.2d 177, opinion filed December 16, 1939, this court held that the rights of a traveler approaching a crossing where a railroad company maintained an automatic signal and the automatic signal failed to function were quite similar to the rights of a traveler approaching a crossing where a railroad company maintained a flagman and the flagman was absent from his post of duty. The rule in case of an absent flagman was announced by this court in Tennessee Cent. Railroad Co. v. Gilbert, 131 Tenn. 201, 174 S.W. 812. That rule is in substance that a traveler is not entitled to rely solely upon the absence of the flagman as an indication of safety, yet such absence tended to blunt the edge of caution and that under all the circumstances of the particular case it was for the jury to say, the traveler having observed the absence of the flagman, whether he was to be excused from further looking or listening for an...