Gulf, M. & O.R. Co. v. Underwood

• Decision Date: 05 May 1945
• Parties: GULF, M. & O. R. CO. v. UNDERWOOD (two cases).
• Court: Tennessee Supreme Court

187 S.W.2d 777

182 Tenn. 467

GULF, M. & O. R. CO. v. UNDERWOOD (two cases).

Supreme Court of Tennessee.

May 5, 1945

Rehearing Denied June 9, 1945.

Error to Circuit Court, Madison County; Dewitt Henderson, Special Judge.

Separate suits by Mrs. Mabeline Underwood against Gulf, Mobile & Ohio Railroad Company for injuries sustained in crossing collision, and by D. G. Underwood, husband of Mrs. Mabeline Underwood, against same defendant, for medical expenses and loss of services. A judgment for Mrs. Mabeline Underwood in the sum of $500 and a judgment for D. G. Underwood in the sum of $250 were reversed by the Court of Appeals, and the plaintiffs bring certiorari.

Judgment of Court of Appeals reversed and that of circuit court affirmed.

On Petition to Rehear.

Spragins & White, of Jackson, for plaintiff petitioner here.

Charles L. Neely and Galloway & Galloway, all of Memphis, and Jack Manhein, of Jackson, for defendant.

GAILOR Justice.

In the Circuit Court of Madison County Mrs. Mabeline Underwood recovered a judgment of $500 as damages for personal injuries against the Railroad Company, and her husband, D. G Underwood, in a consolidated suit for medical expenses and loss of services, recovered a judgment against the Railroad Company for $250.

On appeal the Court of Appeals reversed these judgments on the ground that Mrs. Underwood had been, at the time of the accident for which the suits were brought, guilty of contributory negligence as a matter of law so as to bar the recoveries.

We granted plaintiffs' petition for certiorari, have heard argument, and the cases are now before us for disposition.

It is conceded that the question of the Railroad's negligence was properly submitted to the jury, and the sole question presented is whether or not Mrs. Underwood was guilty of such proximate contributory negligence as a matter of law as to bar her recovery.

At the time of the accident she was a guest in an automobile driven by a Mrs. Inman. The accident occurred at about 2:00 o'clock in the morning of a dark, foggy, misty day. It is not disputed that visibility was very poor. Mrs. Underwood was a stranger in Jackson, and had been there for only two weeks. She had crossed the railroad at the scene of the accident five times during that time--four times in daylight and once before at right. She admits that she knew there was a railroad crossing between her residence and downtown Jackson, but denies that she knew exactly where it was. From the discrepancies in her testimony on direct and cross-examination, it was clearly for the jury to weigh her testimony. There was conflicting testimony of the speed of the automobile--some evidence that it was 22 to 25 miles per hour, and other evidence that it was 40 miles per hour. The great weight of the evidence is that at the time of the collision the atmosphere was misty and it was drizzling rain but we find no support for the statement in the opinion of the Court of Appeals, that 'the fog was impenetrable.' The conflicting evidence of the presence or absence of guards at the crossing, of the visibility of the railroad crossing sign, and of the interval of time between the appearance of the obstruction and the collision during which interval Mrs. Underwood had opportunity (1) to be aware of danger, and (2) to warn Mrs. Inman, were clearly jury questions to be answered by weighing the evidence, and measuring the conduct and behavior of Mrs. Underwood with regard to care for her own safety in the light of the jury's conception of what would have been 'reasonable care' under the same set of facts. Clearly, only the jury could make the appraisal. The driver of the car, Mrs. Inman, had lived in the apartment house where both ladies resided, for more than a year. She was thoroughly familiar with the road, and she was on her own business at the time.

If Mrs. Underwood is to be deprived of her right of recovery, it must be on account of some failure of her own to exercise reasonable care for her own safety. Miller v. Union P. R. Co., 290 U.S. 227, 232, 54 S.Ct. 172, 78 L.Ed. 285, 289; Little v. Hackett, 116 U.S. 366, 6 S.Ct. 391, 29 L.Ed. 652.

The negligence of Mrs. Inman, if there was any, is not to be imputed to Mrs. Underwood to prevent the recovery of the latter. Crawford v. N., C. & St. L. Ry., 153 Tenn. 642, 284 S.W. 892; Schwartz v. Johnson, 152 Tenn. 586, 280 S.W. 32, 47 A.L.R. 323.

Further, if we are to say that Mrs. Underwood was guilty of proximate contributory negligence as a matter of law and so prevent a submission of her case on the facts to the determination of a jury, she must, at the time of her injury or immediately prior thereto, (1) have been guilty of acquiescing in the violation of some statute or ordinance which proximately caused her injuries, or (2) she must, at the time, by undisputed evidence have been guilty of such conduct as would in the unanimous judgment of all men, have constituted proximate negligence. Admit for argument, that Mrs. Underwood knew of the crossing, that it was dark and drizzling rain. She was a guest in the automobile, and not the driver, and we think, under the peculiar facts of this case, could only be held to a duty to interfere with the driver by warning or taking other steps for her own safety-- not when the danger became apparent, but when Mrs. Underwood became aware, or in the exercise of reasonable diligence should have been aware, not only of the danger but of the additional fact that Mrs. Inman, the driver, was not doing what a reasonably prudent driver would do to meet the apparent danger.

'Of course, if an adult, who while riding in a vehicle driven by another sees, or ought by due diligence to see, a danger not obvious to the driver, or who sees that the driver is incompetent or careless, or is not taking proper precautions, it is his duty to give some warning of danger, and a failure to do so is negligence.' Knoxville Ry. & Light Co. v. Vangilder, 132 Tenn. 487, 498, 178 S.W. 1117, 1120, L.R.A.1916A, 1111. (Our emphasis.) Cf. Tennessee Cent. R. Co. v. Vanhoy, 143 Tenn. 312, 340, 341, 226 S.W. 225; Dedman v. Dedman, 155 Tenn. 241, 246, 291 S.W. 449.

There is no evidence that the driver of the automobile was violating a law or ordinance on account of which the guest could be held negligent by acquiescence in such violation. Nor are the essential incidents and circumstances of the driving admitted or undisputed so that all reasonable men are forced to bring in a verdict of negligence against Mrs. Inman, as driver, and Mrs. Underwood, as an acquiescent passenger. One of these two elements (1) acquiescence in the violation of law or ordinance or (2) acquiescence in the driving of a car in an undisputed negligent manner must be present to support a finding of contributory negligence as a matter of law. Holt v. Walsh, 180 Tenn. 307, 313, 174 S.W.2d 657.

The trial court has made a finding that Mrs. Underwood was not guilty of contributory negligence, and the Court of Appeals has found that she was.

'It can no longer be said that there is no room for the minds of reasonable men to differ, or to reach a different conclusion. In the instant case, viewing the facts and circumstances proven, it cannot be said that the minds of reasonable men might not differ. In fact, they have differed. The jury and trial judge and Court of Appeals have reached a conclusion against the deduction and conclusion of learned counsel for the defendant, petitioner here.' Lea et al. v. Gentry, 167 Tenn. 664, 670, 671, 73 S.W.2d 170, 172.

The Court of Appeals held Mrs. Underwood guilty of contributory negligence as a matter of law on the following finding:

'The dangers incident to driving an automobile down a city street and in close proximity to a railroad crossing, on a dark night, through an impenetrable fog, at a speed of 22 to 25 miles per hour, were as obvious to Mrs. Underwood as they were to Mrs. Inman, the driver of the car, and Mrs. Inman was clearly guilty of negligence which was a proximate cause of the collision.' (Our emphasis.)

There is, so far as we can find, no evidence that the fog was impenetrable, but if there was, there was other evidence by railroad employees that there 'no rain or fog,' so the condition of the atmosphere was a question for the jury under all the evidence. We think that if driving an automobile at 22 to 25 miles per hour 'in close proximity' to a railroad crossing, be accepted as a criterion of negligence, the reasonable definition of the phrase itself becomes a jury question under the facts of each case.

Further we think Mrs. Underwood was not guilty of contributory negligence merely by remaining a passenger in Mrs. Inman's car in a place of 'obvious danger,' but would only be so guilty, after she became aware, or in exercise of reasonable...