Harrison v. Southern Ry. Co.

• Decision Date: 13 May 1948
• Docket Number: 1.
• Citation: 215 S.W.2d 31,31 Tenn.App. 377
• Parties: HARRISON v. SOUTHERN RY. CO. et al.
• Court: Tennessee Court of Appeals

215 S.W.2d 31

31 Tenn.App. 377

HARRISON v. SOUTHERN RY. CO. et al.

No. 1.

Court of Appeals of Tennessee, Eastern Section.

May 13, 1948

Certiorari Denied by Supreme Court October 16, 1948.

Appeal in Error from Circuit Court, Loudon County; Pat Quinn, Judge.

Action by Thomas Riz Harrison against Southern Railway Company and others for injuries sustained by plaintiff when he fell into a pit dug alongside a spur track. From a judgmnent for plaintiff, as reduced by remittitur, defendants appeal in error.

Judgment affirmed.

Dannel & Fowler, of Loudon, Clyde W. Key, of Knoxville, and W. E. Michael, of Sweetwater, for plaintiffs in error.

Watkins & Watkins, of Loudon, and Goodwin & Babcock, of Lenoir City for defendant in error.

HOWARD Judge.

This is an action for personal injuries in which the plaintiff below Thomas Riz Harrison, obtained a judgment in the Circuit Court of Loudon County against the defendants, Southern Railway Company and the Loudon Feed, Grain and Coal Company, a co-partnership composed of W. J. Butler and wife, Ruth Butler, for the sum of $2,000.00. Defendants seasonably filed motions for a new trial and upon the trial judge suggesting a remittitur of $1,000.00, which plaintiff accepted, the motions were overruled, and the defendants have appealed in error to this Court.

Plaintiff's declaration charges in substance as follows:

That the defendant Southern Railway Company owns certain yards and switch tracks running in and through certain parts of the town of Loudon, one of which goes to the Charles H. Bacon Company, over which for many years with the full knowledge and consent of the railroad the general public has walked and traveled as a path or roadway in going back and forth to their place of employment; that the defendants, Butler and wife, owned a coal yard abutting this switch track; that a long time ago the Butlers dug a pit under the west side of this track extending upon the western end of the ties thereof to facilitate the unloading of coal from railway coal cars that the location of the pit on the west side of the switch track was well known to the public and in the event there should be a coal car standing on the track where the pit on the west side was located, they went around said car on the eastern side in safety and without danger of falling into said pit; that just a few days prior to October 6, 1946, the Butlers dug a new pit under the eastern side of this switch track to a depth of 6 to 8 feet, in which they placed a conveyor machine, and left said new pit or opening unguarded without guard rail, warning device or protection to prevent persons traveling or walking along said switch track, as they were accustomed to do, from falling into said pit and being injured, thus creating a new danger, hazard and peril to licensees and persons walking and using said switch track and without giving a timely notice to persons using the same.

Plaintiff, therefore, averred that the defendants were guilty of active negligence in thus creating a new peril and without properly placing guards at or around said new pit and by failing to give proper and timely notice to the public of the dangers created by said new pit; that the plaintiff, in the early morning hours on October 6, 1946, was walking along said switch tracks, while it was yet dark, fell into the newly dug pit, thereby sustaining the injuries for which he sues.

To plaintiff's declaration each of the defendants filed demurrers in which they insisted that the declaration did not allege actionable negligence; that because plaintiff was a licensee the only duty defendants owed him was to refrain from willfully or maliciously injuring him; that said declaration failed to allege any willful or malicious act or conduct upon the part of defendants and that plaintiff's contributory negligence was the proximate cause of his injuries which bars a recovery as a matter of law.

Inasmuch as plaintiff's declaration, by a fair and natural construction shows a substantial cause of action, the trial judge correctly overruled defendant's demurrers. Code Section 8729. Jackson v. B. Lowenstein & Bros., Inc., 175 Tenn. 535, 542, 136 S.W.2d 495; Wheeler v. Maryville, Tenn.App., 203 S.W.2d 924.

Prior to August 6, 1946, the Butlers who retailed coal in the town of Loudon unloaded coal consigned to them from defendant's railway cars on the west side of the spur track, known as the jaybird switch, where they used a small pit that licensees who walked the track knew about, and this pit was known to the plaintiff, who testified that he had frequently used the track in walking to and from his work. The Butlers also owned the real estate abutting the spur track on which the pits herein referred to were located.

On the aforesaid date the Butlers with co-defendant's permission dug a new pit on the east side of the track opposite the old pit about six feet deep with concrete sides, and a conveyor was placed therein to carry coal unloaded through the bottom of the coal cars to trucks to be hauled away.

On October 6, 1946, plaintiff was employed as a night watchman at the Charles H. Bacon Hosiery Mill in Loudon, where he had been working for five years. He lived several blocks from the mill and usually went to his work by automobile. On the night he was injured, he couldn't get his car started so he concluded to walk to his work.

Plaintiff's home was north of where the spur track intersects Hackberry Street, and in going to his work he usually drove his automobile south on Hackberry Street to the intersection of Carter Street, then turned left or east on Carter Street. From the point where the spur track crosses Hackberry Street, the track runs in a southeasterly direction to where it intersects Carter Street, thereby forming the hypotenuse of a triangle. On each side of the spur track are several warehouses, some of which face on Hackberry Street and some of which face on a driveway east of the spur track, thus the spur track passes through an alley way between and to the rear of two rows of warehouses where freight is unloaded from the railway cars. The Bacon Mill at which plaintiff worked is located on the spur track between where the track intersects Hackberry Street on the north and where it crosses Cedar Street on the south.

Plaintiff left his home and walked south on Hackberry Street until he reached the spur track at which point he left the lighted street and proceeded to walk between the rails along the spur track until he reached a point where his progress was blocked by a railway coal car which had been placed over the Butler coal pit to be unloaded. To pass this car plaintiff started around the east side and fell into the pit heretofore described, which was uncovered and without guard rail or banister. He said that he walked on the east side of the car because he knew that for several years the Butlers had maintained their coal pit on the west side of the track, which he wished to avoid; that it was so dark he could not see a foot in front of him, and that at the time he was injured he did not know of the existence of the newly dug pit on the east side of the track; that he had used the spur track several days previously and had not noticed that the pit had been changed from the west to the east side of the track. He denied that he had talked to W. J. Butler at the coal pit two weeks prior to the night he was injured.

Jake Thornburg, an employee of the Bacon Mill, testified that he saw plaintiff about 1:20 A.M. after he was injured and that he went to the uncovered pit where he found plaintiff's hat and dinner bucket in the conveyor, and that he called Charlie Bracket, foreman of the mill, who came and took plaintiff to the Hospital. He stated that the public had traveled the switch ever since he was a boy and that he was 50 years of age.

Fred White, age 44, was called as a witness for plaintiff and he stated that he occupied the property on the east side of the track for several years before the Butlers occupied it; that when they took possession of the property he moved to the west side of the track and occupied the property formerly used by them; that the only cover that he had ever seen was a piece of boiler plate which was placed between the rails over the pit; that up to the time of plaintiff's injuries, no cover was available for that part of the pit extending beyond the end of the ties. He said that the public had used the track as a walkway ever since he could remember and that there were paths on the east and west sides of the track; that when he unloaded sand where the pit is now located he was compelled to stop work while pedestrians passed.

W. N. Oody, another witness for the plaintiff, stated that the public had walked on the jay-bird switch track in going to and from their work since he was employed at the Bacon Mill and the Chair Facotry in 1909.

Roy Hodge, Section Foreman of the Railway Company, was called by the plaintiff and testified that he was familiar with the tracks of the defendant company; that he was paid by the railroad company and that the company used and had maintained the jay-bird switch track for several years; that the public had used the track for a long time, but had never walked on the east side where the new pit was located; that on August 7th after the pit was constructed, he inspected it and strengthened the track to make it secure for trains to pass safely over the pit.

Defendant W. J. Butler testified that he and his wife, Ruth Butler were in the feed, grain and coal business and that they unloaded coal consigned to them on the east side of the jay-bird switch where they constructed the new pit in which they put a conveying machine; that for ten years the public had used the west...