Illinois Cent. R. Co. v. Bentz
| Decision Date | 24 May 1902 |
| Citation | 69 S.W. 317 |
| Parties | ILLINOIS CENT. R. CO. v. BENTZ. |
| Court | Tennessee Supreme Court |
Action by Isabella Bentz against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.
C. G. Bond, for plaintiff. Hays & Biggs, for defendant.
Ed Bentz was engineer on freight train No. 84, which left Jackson at 2:40 o'clock on the morning of the 10th of June, 1897, destined for Mounds, Ill. The train approached Milan about 4:20 a. m. There the engineer blew for the semaphore signal, which was set at red, and failed to receive the white signal in reply. Advancing his train still nearer, he blew again, when, according to the evidence of plaintiff below the red signal turned to white. This, under the rules of the railroad, indicated that there were no orders for him, and that the track was clear for him to go ahead. Upon receiving this signal he moved his train north, and while running at a moderate speed around a curve of the railroad, about 5:20 a. m., at a point north of Idlewild, he had a head-end collision with train No. 81, moving south. When this collision was clearly inevitable, Bentz jumped to save his life, and in doing so received mortal injuries, from which death ensued. This suit was brought by his widow to recover damages for his death which is attributed in the declaration to the negligence of the railroad company. The act of negligence complained of is that at 4:37 a. m., after train No. 84 had passed Milan, the train dispatcher of plaintiff in error at Jackson, whose duty it was to regulate the movement of its trains, inquired of its local operator at Milan as to whether Bentz's train had passed that point, and the operator at Milan replied that it had not, and, acting on this information, the train dispatcher gave an order to the south-bound train, No. 81, then at Martin awaiting orders, to meet north-bound train, No. 84, at Idlewild, and at the same time gave the same order to the Milan operator to be delivered to train No. 84 when it reached that point. Train No. 81 received this order, and was on its way to Idlewild when the collision occurred; but train No. 84 did not, as the order reached Milan a few minutes after No. 84, in answer to the white light displayed on the semaphore, had passed that point. This semaphore was under the control of this operator, and its movements were regulated by a rope which passed from it into the office occupied by him. There were a verdict and judgment for the plaintiff below, and the case has been brought to this court by the defendant company.
A number of errors are assigned upon the action of the trial court. The first of these is that, upon motion of the plaintiff below, the court struck out a plea in which the defendant averred that prior to the bringing of the present suit the plaintiff, Mrs. Bentz, had brought her action against the defendant in the circuit court of Madison county, in this state, seeking to recover damages for the same cause of action that this suit was instituted for; that therefore the defendant, under the act of congress in such case made and provided, had that cause removed to the United States circuit court for the Eastern division of the Western district of Tennessee, that in said court, upon an issue involving the question of liability of the defendant for the same act of negligence herein alleged, and the injury consequent therefrom, there was a trial, and a verdict in favor of the plaintiff; that, on a writ of error prosecuted from the judgment thereon to the United States circuit court of appeals, sitting at Cincinnati, Ohio, that court adjudged that the jury, on the facts of the case, "because the injury occurred through the negligence of a fellow servant (the telegraph operator at Milan) of the plaintiff's husband, should have been directed to bring in a verdict for the defendant," and thereupon reversed the judgment of the lower court, and remanded the case for a new trial; that a mandate issued to the circuit court for a new trial in accordance with this adjudication; and that in the midst of the trial so ordered, and before its conclusion, the plaintiff, over the objection of the defendant, was permitted to take a nonsuit, and thereafter instituted the present action. Upon this state of facts, it was averred, the matters involved had been conclusively adjudicated against the plaintiff. Was the court in error in striking out this plea? While in the plea this action of the United States circuit court of appeals is alleged to be res adjudicata of the question of the railroad's liability to the defendant in error for the loss resulting from the negligence of the telegraph operator and manager of the semaphore, yet in the argument of counsel in support of the assignment of error the claim is somewhat abated, and it is now insisted that its legal effect is that, upon the reopening of the facts between the same parties in the state courts, it is the law of the case; that, while not a bar to the action, it is conclusive upon the parties, so far as the question of liability rests upon the alleged negligence of the operator. Many authorities are relied upon for this contention, but, so far as our examination has extended, they do not support it. Among them are some like Supreme Lodge v. Lloyd, 46 C. C. A. 153, 107 Fed. 70, and Collins v. Insurance Co., 91 Tenn. 432, 19 S. W. 525, where the court has held that the principles announced upon the first appeal constitute the law of the case upon a second appeal. However sound this rule is when applied to a suit that has once had the law declared in it by an appellate court, and is remanded, and, after a second trial in the court below, once more reaches the court of appeals, we do not see upon what grounds it is to be made to apply, after a voluntary dismissal by the plaintiff, to a new suit instituted in an independent forum. Nor do we think that Jacobs v. Marks, 182 U. S. 583, 21 Sup. Ct. 865, 45 L. Ed. 1241; Bank v. Farnum, 176 U. S. 640, 20 Sup. Ct. 506, 44 L. Ed. 619; Pittsburgh, C., C. & St. L. R. Co. v. Long Island Loan & Trust Co., 172 U. S. 493, 19 Sup. Ct. 238, 43 L. Ed. 528; and Crescent City Live Stock Co. v. Butchers' Union Slaughter House Co., 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614, — furnish any aid to this contention. It is unnecessary here to enter upon ...
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