Curtis v. Louisville & N.R. Co.

• Decision Date: 02 May 1916
• Docket Number: 2731.
• Parties: CURTIS v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

232 F. 109

CURTIS v. LOUISVILLE & N.R. CO.

No. 2731.

United States Court of Appeals, Sixth Circuit.

May 2, 1916

G. W Pickle, of Knoxville, Tenn., for plaintiff in error.

Jas. G Johnson, of Knoxville, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

Charles C. Curtis was killed by a Louisville & Nashville train at a grade crossing in Eastern Tennessee, at 10 o'clock on an evening of September. This action was brought by his administrator, to recover for the death, under the Tennessee statute. There was the requisite diversity of citizenship to give jurisdiction; but on the trial the court below directed a verdict for the defendant, and the administrator brings error.

The Tennessee statutes (Shannon's Code, Secs. 1574-1576, and subdivision 4 of section 1574) arbitrarily require certain precautions to be taken, when any 'obstruction appears upon the road,' and declare an absolute liability in the absence of such required precautions. It is the settled Tennessee construction of this statute that it is to be applied only when the person or other obstruction appears upon the track in front of the engine or within lateral striking distance before the collision occurs, and that it does not apply in a case where the person first comes within the striking distance at a point which the head of the engine has already passed, or at the very instant of the engine's arrival (see reviews by this court of the Tennessee cases in Railway v. Truett, 111 F. 876, 50 C.C.A. 442; Railroad v. Sutton, 179 F. 471, 103 C.C.A. 51; Railway v. Koger, 219 F. 702, 135 C.C.A 374); also that, in order to make out a case under the statute, the burden is on the plaintiff to show that the obstruction did appear on the track ahead of the engine (Railway v. Hawk (C.C.A. 6) 160 F. 348, 353, 87 C.C.A. 300, and Tennessee cases cited).

The first court of the declaration in this case was based upon this statute. There was no surviving eyewitness of the accident. Curtis was in a buggy driving a single horse, going east along the highway at about right angles to the railroad. The north-bound train reached the crossing at about the same time. The horse and buggy and Curtis were found at different spots, but all west of and within a few feet of the railroad track, and within a few feet north of the center of the highway. The only mark found on the engine indicating a collision was that the flagstaff holder, near the left-hand end of the pilot beam, was bent. The fireman, looking up after putting in coal, caught a glimpse of the horse apparently rearing away from the side of the engine. These facts as to the flagstaff and as to what the fireman saw coupled with the inference to be drawn from the location of the bodies, constitute the only evidence on the issue whether the horse was upon or close to the track ahead of the engine, so as to make it possible to say that the horse constituted an 'obstruction upon the track' within the meaning of this statute. We are quite clear that these facts, coupled with all permissible inferences, cannot meet the burden of proof which rested upon plaintiff on this issue. Remembering that the horse was going eastwardly, these facts and inferences, separately and collectively, tend to determine the issue in the negative, viz., that the horse was not upon the track or within striking lateral distance until, at the earliest, the same instant when the front of the engine arrived at the same spot. So far as this count is concerned, the direction of verdict must be sustained.

The court below found that the undisputed facts disclosed such contributory negligence as would bar any right of recovery at common law under the second count, and so found it unnecessary to decide whether there was any evidence tending to show negligence by the railroad. If this did exist, it consisted in not giving the customary signals by bell and whistle when approaching the crossing. We assume, without deciding, that the evidence tended to show a breach of duty by the railroad in this respect, and so we come to the existence of contributory negligence as the controlling question. This requires some further statement of facts. About a half mile south of the crossing, the railroad emerged from a deep cut. The railroad track at this point was 8 feet higher than at the highway crossing, and, between the two points, was straight. The view of a north-bound train, by a person going east on the highway, for 300 feet toward the crossing was wholly unobstructed for this half mile, except for two things. About...