Gilreath v. Southern Railway Company

• Decision Date: 25 September 1963
• Docket Number: No. 15041.,15041.
• Citation: 323 F.2d 158
• Parties: Margie GILREATH, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

323 F.2d 158 (1963)

Margie GILREATH, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY et al., Defendants-Appellees.

No. 15041.

United States Court of Appeals Sixth Circuit.

September 25, 1963.

A. E. Graves, Chattanooga, Tenn., Dewitt T. Sneed, Jr., Chattanooga, Tenn., on brief, for appellant.

Dawson Hall, Chattanooga, Tenn., Whitaker, Hall & Haynes, Chattanooga, Tenn., of counsel, for appellees.

Before CECIL, WEICK and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Plaintiff-appellant, Margie Gilreath, as widow of William Roy Gilreath, brought suit against defendants-appellees, Southern Railway Company and Alabama Great Southern Railroad Company to recover damages for his claimed wrongful death. The District Judge granted defendants' motion for a directed verdict made at the close of plaintiff's proofs. From the judgment entered upon such directed verdict, plaintiff takes this appeal.

This is a case where a person was found, fatally injured, lying between the rails of a railroad track, without (as the case stood when the verdict was directed) anyone claiming to have seen the fatal accident. The events involved occurred sometime around 11:00 o'clock on the night of May 12, 1958, in the City of Chattanooga, Tennessee. Plaintiff asserts that the evidence adduced in her case was sufficient to have permitted the jury to find that her husband was struck by a train operated by one of the defendant railroads after he had appeared as an obstruction on its track, and that such railroad failed to take the precautions then and thereby required by Tennessee Code Annotated, Sections 65-1208(4) and 65-1209.¹

The answers of both defendants conceded that the prescribed precautions had not been taken, but claimed that they were not required, averring that the deceased, Gilreath, had at no time appeared as an obstruction upon the road over which a train operated by either of them was proceeding. With such admission, a verdict should not have been directed for defendants, if at the time of the motion therefor there was sufficient circumstantial evidence from which the jury could find that the deceased was an obstruction in the path of a train and sufficient evidence from which the jury could find which of the defendants' railroads, if either, was the operator of the train which struck Gilreath. Defendants claim that plaintiff's proofs failed in both such regards.

The events here involved occurred upon that part of a railroad right of way owned by defendant Alabama Great Southern Railroad, lying between Main Street on the north and Rossville Boulevard on the south, both in the City of Chattanooga. Two main line tracks, running substantially north and south, traverse this area. In the proofs and upon a map exhibit, the east track was identified as main line Track No. 1 (the green track) and the west track identified as main line Track No. 2 (the yellow track). While there was evidence that trains operated in either direction on both tracks, Track No. 1 (green) was referred to as the northbound track and No. 2 as the southbound track. Trains of both defendants, as well as those of some other railroads, used these tracks.

The deceased Gilreath was 45 years old at the time of his death, apparently an unskilled workman whose current employment was that of a handyman. His immediate employer considered him an excellent worker. He was then engaged in performing odd job work because his regular employer, a house mover, had no work for him. He had no disclosed residence of his own in Chattanooga, but at times boarded at his sister-in-law's house in that city. His wife, the plaintiff, at the time here involved, lived in Alabama. He had worked at his handyman job on the day of his death and his then employer testified that he was to come back to work for her the next day. This lady had, at the end of his day's work, let Gilreath out of her car at her church parking lot around six o'clock in the evening. Gilreath was next seen around 7:00 o'clock the same evening at the house of a friend who lived south of the tracks above described. After visiting there for about thirty or forty minutes, Gilreath left, announcing that he was going to Main Street to get something to eat. He was next seen about 10:45 that evening, walking southerly along a footpath that led from Main Street to Rossville Boulevard, along the west side of the above described main line Track No. 2. The witness who then saw Gilreath, one Ware, was standing in a boxcar on a side track which served the plant of the Container Corporation. This plant was located on the east side of the railroad right of way and near to Rossville Boulevard. Ware was looking up the tracks to the north. Between Main Street on the north and Rossville Boulevard on the south, the railroad tracks did not run true north and south, but ran somewhat southwesterly and northeasterly. Gilreath, coming south, was followed by two companions^1a and, as Ware looked, he observed a train "southbound" on the No. 2 (yellow) main line track, several hundred feet in back of Gilreath and his companions. Gilreath was then about 300 feet north from Ware. Ware watched Gilreath until he came about opposite him. Ware knew Gilreath and waved to him as he came by. Gilreath returned the greeting. Ware said that headlights of the approaching train shone on Gilreath, and the flasher signal and bell at the Rossville Boulevard crossing were in operation. When Ware last looked at him, the train was about 250 feet north of Gilreath. At that time, shortly before 11:00 o'clock, Ware turned to go into the plant. Ware's shift ended at 11:00. Ware went back into the Container Corporation plant, took a shower, and when he got out from under the shower he "began to hear a train bell ringing and a whistle blowing." Ware then went upstairs, changed clothes and came out. Coming through the boxcar in which he had been previously standing, he saw a switch engine headed north on track No. 2 (southbound track). A crowd had gathered on the tracks. When he went over to see what had happened, he saw Gilreath's body lying on the westerly (southbound) main line track No. 2. Ware marked on an exhibit the spot where Gilreath lay between the rails of the track. He fixed the time of seeing Gilreath's body as about 11:20 o'clock. Ware further testified that there was a path along the west side of the main track where Gilreath had been walking and that to get to Polk Street (where Gilreath's sister-in-law lived, and who was expecting Gilreath that night) Gilreath would have had to cross the tracks from west to east. He said, "coming from the north side coming to the south side of the track² in that grass there is a pathway where you come to cross in front of the shipping department, come over the alley and you come out on Central Avenue. * * * People use that path to work, just the same as a street * * *. They had to cross the main track and the switch track too * * *. He still had to cross the railroad to get to Polk Street * * * he had to cross all three tracks to get to where I was."

Plaintiff's witness, James McCain, was the engineer on a Southern Railway switch engine and was going north on Main Line Track No. 2 around 11:00 o'clock on the night of Gilreath's death. He was the one who discovered Gilreath's mutilated body on the tracks. Contrary to Ware, he located Gilreath as lying between the rails of the northbound main line track No. 1 (green). McCain testified: "He was run over by a train, or something, that had cut — I believe it was his right leg — he was lying between the tracks * * *. There was a splotch of blood on the inside tracks, between the tracks * * *. His body was between the two tracks."

McCain went to the scene the next day to give information to the police "and tried to get a true picture of what had happened, and we found traces from where the blood was, where his body was lying almost across south of Rossville Boulevard. You could see traces of where the wheels or what you, drops, or maybe parts of flesh, small parts of flesh." Asked whether he found some pieces of fingers south of Rossville Boulevard, he stated, "We found something that looked like fingers, just small bits of flesh." McCain said his discovery of Gilreath's body occurred between 11:00 and 11:30 o'clock. This witness further testified that at about 11:00 o'clock he had observed one train going north on main line track No. 2 and also in the neighborhood of 11:00 o'clock he saw a freight train come south on main line track No. 1 (green).

In answer to a pretrial request for admissions, the defendant Southern Railway admitted that it "operated one train on May 12, 1958, in the neighborhood of 11:00 o'clock P.M. between Main Street and Rossville Boulevard * * * which movement was over and upon AGS (Atlanta Great Southern) northbound mainline track, being the mainline track nearest to the Container Corporation. There are two mainline tracks between Main Street and Rossville Boulevard * * * at said point and trains operate over in either direction over both tracks."³ It was stipulated that Gilreath was admitted to the hospital with the following injuries:

"Laceration between the eyes, upper lip and lower lip, across neck, left thigh, left hip, left knee, amputation of right small finger and ring finger and part of middle finger; that x-rays revealed an oblique fracture of the eighth, ninth, tenth, and eleventh right ribs posteriorly near the vertebrae; the ninth was fractured four times, the posterior portion being displaced inferiorly; patient was partly conscious intermittently, but unable to talk coherently; he was found in shock, with no blood pressure or pulse; he had a crushed chest with paradoxal respiration on the left side; complete amputation of the right leg above the knee; chest full of rales; patient died about two hours after admission."

In their motion in the District Court, and on this appeal, defendants rely on two grounds which they...