Cope v. SOUTHERN RAILWAY COMPANY
| Decision Date | 03 June 1969 |
| Docket Number | No. 19019.,19019. |
| Parties | James R. COPE, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Dawson Hall, Chattanooga, Tenn., for appellant.
Robert W. Hill, Jr., Chattanooga, Tenn., for appellee.
Before WEICK, Chief Judge, COMBS, Circuit Judge, and GORDON*, District Judge.
In the night time, on the third of November, 1965, the plaintiff, operating his automobile at 15 to 20 mph in a thick fog, drove into the side of the appellant's train, which at the time was crossing a public thoroughfare familiar to the plaintiff outside of the limits of the city of Chattanooga, Tennessee. Plaintiff sustained personal injuries and damages to his automobile, and sued for both. In the presentation of his case, plaintiff's evidence disclosed that following the impact he saw, for the first time, a railroad employee with a lantern who orally indicated to the plaintiff that he had been in the roadway to wave down vehicle traffic, but had been forced to jump, in the interest of his own safety, out of the roadway "when he seen me coming".
At the conclusion of the plaintiff's proof, the defendant railroad stood on its motion for a directed verdict which was overruled by the trial court upon the theory that where, as here, the railroad assumes the duty, without legal obligation so to do, and places a flagman at a crossing, the flagman must perform his duties with due care, and that it was the jury's function to say whether or not such duties were so performed, thereby distinguishing this factual situation from the holdings in Tennessee Central Railway Company v. Schutt, 2 Tenn.App. 514, and King v. Tennessee Central Railway Company, 36 Tenn.App. 192, 253 S.W.2d 202.
Upon certain interrogatories, the jury found the plaintiff guilty of no negligence and the railroad guilty of both ordinary and gross negligence, and awarded damages.
We reverse. We find the evidence to be insufficient to support the jury verdict of either ordinary or gross negligence on the part of the appellant railroad. It violated no duty, company rule or custom. Plaintiff-appellee, who had no knowledge of a flagman's presence until after the accident, did not act in any way in reliance upon the flagman's directions. Where the injured party had no knowledge of nor any reasonable grounds to expect a flagman at the crossing, the legal principles involved are the same as if no flagman was present, and thus no...
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Chandler v. Massa, 18405.
...that Mr. Massa made an effort to correct the situation, if, in fact, he did." Recently we applied the same principle in Cope v. Southern Ry., 410 F.2d 1146 (6th Cir.1969), a Tennessee case, wherein it was contended that the railroad was liable for negligent performance of a duty which it ha......
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Frankenberg v. SOUTHERN RAILWAY COMPANY, 19566.
...defendant's freedom from negligence as a matter of law, and King has been cited by this Court for that proposition. Cope v. Southern Ry., 410 F.2d 1146 (6th Cir. 1969). Whether the principle which the railroad relies on should be considered dictum presents some difficulty for a federal cour......