Illinois Cent. R. Co. v. Porter

• Decision Date: 19 June 1906
• Citation: 94 S.W. 666
• Parties: ILLINOIS CENT. R. CO. v. PORTER.
• Court: Tennessee Supreme Court

Page 666

94 S.W. 666

ILLINOIS CENT. R. CO. v. PORTER.

Supreme Court of Tennessee.

June 19, 1906.

Error to Circuit Court, Shelby County; Walter Malone, Judge.

Action by Reese Porter against the Illinois Central Railroad Company. There was a judgment for plaintiff, and defendant brings error. Affirmed.

J. H. Watson, for plaintiff in error. Tim E. Cooper, Charles N. Burch, and Albert W. Biggs, for defendant in error.

McALISTER, J.

The plaintiff below was in the employment of the United States in the capacity of a mail clerk, and was assigned to duty on a fast passenger and mail train known as the "Chicago and New Orleans Limited." On the 20th of October, 1904, he sustained serious personal injuries in consequence of the derailment of the train at or near the village of Tillatoba, Miss. There was a verdict and judgment in favor of the plaintiff below for the sum of $2,500, from which the company appealed and has assigned errors.

The first assignment is that there is no evidence to support the verdict of the jury. It is conceded by learned counsel on the brief that the derailment of a train, inflicting injuries upon a passenger, makes out a prima facie case of liability, and devolves upon the company the burden of proof that the accident was unavoidable, even by the exercise on its part of the utmost degree of care, skill, and foresight. But his contention is that the plaintiff in error adduced evidence conclusively showing that the accident was unavoidable, and not the result of any negligence or want of care, skill, or foresight upon the part of the company, its servants, and agents. The contention of learned counsel is that the accident was not caused by the high rate of speed at which the train was being operated, but by reason and on account of some latent defect, which caused the rear wheels of the tender of the second engine to leave the track; but just what this defect was it has been impossible to determine, etc.

The record reveals that at the time of the accident the train, consisting of 14 coaches, drawn by two engines, was running at a rate of 70 miles an hour. The train in question was operated as a fast mail and passenger train, and was especially designed to carry with the utmost expedition the United States mail between the points designated.

The cause of the accident does not distinctly appear from the record. The evidence submitted on behalf of the company indicated that the track was in good condition, that the engines, cars, and equipment of the train were in good order, and that the employés of the company at the time of the accident were in the exercise of proper care. The superintendent of the defendant company arrived on the scene of the accident about an hour after it occurred, and states that when he arrived he found a part of the train in a ditch. There were two cars on one side of the track badly derailed, and one of them turned bottom side up; on the other side there was another, badly derailed. There were several cars off the track. "My recollection is five or six cars were standing on the track that were not derailed." The first manifest evidence of the derailment showed itself at a point about 30 feet south of the north switch and extended for a distance of 2,500 feet to the point where the cars were ditched. The indentations on the ties showed that one pair of wheels had first left the track, and a little further on the truck left the track, and then a little further on the truck slued around, and the cars already described then became derailed. According to the witness, two wheels of the front truck of the tender on the second engine first left the track, which was soon followed by the truck itself, and then the truck turned around and caused a derailment of the cars.

It further appears from the record that the accident happened on what is known as a "reverse curve," and it is insisted that it was gross negligence on the part of the company to operate its trains at such a high rate of speed on a curve of that character. The superintendent testified that this is a 3-degree curve, or a divergence from a tangent to 3 degrees of a circle of 360 degrees; that it was not much of a curve; that it was a reverse; that it runs from the obserse side at a tangent onto the reverse side; that it is not a stiff curve by any means.

The plaintiff testified that from his experience in the service the train was running at not less than 70 miles an hour, and that the train was nearly two hours late; that his attention was directed to the speed of the train before it left the track; that he was working at the letter case; train was running at such a rate of speed on the reverse curve that he could hardly strike the letter box, working the letters. Plaintiff testified that he had never seen the train make such speed as that over a reverse curve like that at Tillatoba. He further testified that it was an unusually sharp curve and downgrade; that it is an unusually sharp curve, and there is no downgrade worse than that on the road. The witness further testified that he had never known the train to run so fast at that point before; that he had known it to run as fast as that on straight stretches of track, but never that fast at that point.

It should have been stated that at the time of the accident the train was proceeding south towards New Orleans.

The plaintiff's testimony as to his injuries was as follows: "One bone in my left arm was broken — that was the principal surface injury at the time — and I had wounds, one on my cheek, another over my eye, several cuts and bruises on my head, and then a severe bruise and abrasion on my left hip and on each knee, and then another about half way down between the knee and the ankle, and a number of small cuts and bruises all over the surface of my body. The car was reduced to splinters almost, and a number of them were imbedded in my flesh. I was disabled for a period of five months."

Plaintiff further testified that prior to the accident he enjoyed unusually good health and had never lost any time from sickness, but that since the accident it had been very different; that he had fallen off in weight and suffered a great deal from sleeplessness; that sometimes he would only sleep an hour or two in a night, unless he was under the influence of an opiate. At the time of the accident he was in Class 4A, and getting a salary of $1,200 a year.

It should have been stated that the superintendent of the road also testified that this train was scheduled at 39 miles an hour, including stops, and that at the time of the accident it was behind time. This witness further testified that the company did not limit its men in speed on these trains. "If a train is late, we have confidence in our enginemen, and we say to them: `Make up as much of that time as in your judgment you consider entirely safe.'"

It is well settled that a railway postal clerk in the discharge of his duties on a railway train occupies the relation of a passenger, and his rights are to be determined by the rules of law applicable to that relation. B. & O. R. R. Co. v. State (Md.) 18 Atl. 1107, 6 L. R. A. 706, 20 Am. St. Rep. 454; Arrowsmith v. Railroad Co. (C. C.) 57 Fed. 165; N. Y., etc., R. R. Co. v. Seybolt, 18 Am. & Eng. Ry. Cas. 162 (95 N. Y. 562); Gleeson v. Va. Midland R. R., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458.

In Railway v. Kuhn, 107 Tenn. 112, 64 S. W. 203, it was said: "All the law required of the plaintiff in the first instance was to show that the defendant was a common carrier, that he was its lawful passenger, and that the injury sued for was caused by the derailment and overturning of the coach in which he was traveling. That, without more, was sufficient to constitute a prima facie case of actionable negligence on the part of the defendant; and to rebut the presumption of negligence arising from proof of these facts it was incumbent on the defendant to prove that it had done all within its power to avoid a disaster of that kind." The presumption is not conclusive, however, but may be rebutted by showing that the injury arose from an unavoidable accident, or an occurrence which could not have been prevented by the highest applicable degree of care and foresight.

The uncontradicted evidence on the record is that at the time the train was derailed it was running over a reverse curve at a speed of 70 miles an hour. It is true liability cannot be based simply upon the rate of speed. As said by Mr. Elliott, in his work on Railroads (volume 4, § 1589), as follows: "The speed at which trains are run is, as a general rule, a matter to be determined by the railroad company; and where there is no statute or municipal ordinance, it is very seldom indeed that a charge of negligence can be successfully maintained upon evidence that the rate of speed was very great." There may, however, be peculiar circumstances involved in a particular case which will justify the conclusion that there was negligence in running at a high rate of speed; but it would require peculiar circumstances or conditions to make the rate of speed an element of negligence. Railroad Co. v. Winters, 85 Tenn. 240, 1 S. W. 790; Railroad Co. v. Milam, 9 Lea, 223; Fitch v. Railroad Co., 3 Tenn. Cas. 676.

The proof shows that the defendant company was accustomed to run this train at the rate of 70 miles an hour over that portion of its road, and that the exigencies of its business in the carriage of its passengers and the transmission of the government mail required the highest speed attainable within the limits of reasonable prudence and safety. The company in this case has offered no explanation of the derailment of its train, but has sought to counteract the presumption of negligence arising from the accident by proof that it had exercised proper care in the selection of its employés, that its road was in good order, and that its equipment was perfect. It further offered evidence tending to show a very...