Illinois Cent. R. Co. v. Hudson

• Decision Date: 02 October 1916
• Citation: 188 S.W. 589,136 Tenn. 1
• Parties: ILLINOIS CENT. R. CO. v. HUDSON.
• Court: Tennessee Supreme Court

188 S.W. 589

136 Tenn. 1

ILLINOIS CENT. R. CO. v. HUDSON.

Supreme Court of Tennessee.

October 2, 1916

Certiorari to Court of Civil Appeals.

Petition for certiorari by the Illinois Central Railroad Company, to review a judgment of the Court of Civil Appeals, reversing and remanding judgment for petitioner in an action by Bettie Hudson against petitioner. Judgment affirmed.

Hughes Special Judge, dissenting in part.

Bell Terry & Bell, of Memphis, for plaintiff in error.

Sivley & Evans and Burch & Minor, all of Memphis, for defendant in error.

HOLMES Special Judge.

Bettie Hudson was the plaintiff below and brought her suit at law against the Memphis Street Railway Company and the Illinois Central Railroad Company for personal injuries alleged to have been sustained by reason of a collision between a freight train and a street car, upon which she was a passenger, the place of the alleged injury being a mile or more east of the corporate limits of the city of Memphis, at the crossing of the Illinois Central Railroad and the Raleigh Springs line of the street car track of the Memphis Street Railway Company, in the suburban town of Binghampton. The plaintiff charges that the street railway company was negligent, in that it caused its street car upon which the plaintiff was a passenger to be driven across the track of the railroad company in front of an approaching train, which ran into and collided with it, and thereby injured the plaintiff. She charges that the defendant, Illinois Central Railroad Company, was negligent, in that it did not bring its train of cars to a stop before crossing the street railway and also charges a violation by the Illinois Central Railroad Company of certain statutory precautions, and also charges common-law negligence. To this declaration there were pleas of not guilty, and other pleas which raised questions not now in issue.

In the trial court, after all of the evidence was in, the court sustained a motion by the Illinois Central Railroad Company for a peremptory instruction, whereupon the plaintiff took a nonsuit as to the Memphis Street Railway Company and prosecuted her appeal to the Court of Civil Appeals. The Court of Civil Appeals reversed the trial court, holding that the peremptory instruction ought not to have been given; that it was the duty of the railroad company to stop its engine and train of cars before crossing the track of the Memphis Street Railway Company under and by virtue of the provisions of chapter 46 of the act of 1871, which is commonly spoken of as the "Stop Statute," the provisions of which are as follows:

"An act for the protection of persons and property upon railroads.

Section 1. Be it enacted by the General Assembly of the state of Tennessee, that it shall be a misdemeanor for the engineer or other employé of any railroad company to cross the track of any other railroad in this state with an engine or train without first coming to a full stop.

Sec. 2. Be it further enacted, that a violation of the first section of this act shall subject the offender to indictment or presentment in any court having jurisdiction thereof, and upon conviction he shall be fined not less (than) fifty (50) dollars, nor more than one hundred (100) dollars, and imprisoned in the county jail not less than one month nor more than six months, or both at the discretion of the jury trying the same."

The case is brought before us by the Illinois Central Railroad Company on petition for certiorari. We will deal in this opinion only with the application of the stop statute.

The record shows that the Memphis Street Railway Company owns and operates the Raleigh Springs line as an integral part of its street railway system in the city of Memphis and suburbs; that it is using upon this particular line the same kind of cars and equipment which are used by it on other lines over the streets of Memphis; and that the street cars operated by it over this line go to and from the heart of the city of Memphis, are operated by electric motors, and are commonly known as "trolley cars." The cars on the Raleigh line ran over the streets of Memphis just as other street cars did, were operated on the same rails and by the same wires and by the same power and by like crews as other street railway lines. So far as we are able to discover, the only difference between a Raleigh Springs car and other street cars operated exclusively within the city limits, was merely the marking on the front to show destination. The Raleigh Springs car did not stop at uptown points in the city of Memphis to let off passengers on its outgoing trips, but it did stop at any and all street corners to let off passengers on its incoming trips. On its outgoing trips, after reaching Evergreen avenue, in the eastern part of the city, it stopped at any street crossing to let off or take on passengers. The street car company did no freight traffic on the Raleigh line, but ran only street cars over this line, and it seems clear from the record that it was doing a street car business on this line at least as far out as the Binghampton crossing.

Just before nightfall, in September, 1914, one of the Raleigh Springs cars, with a trailer attached, and loaded with passengers, approached the Binghampton crossing of the Illinois Central Railroad Company's belt line. The belt line has two tracks, running north and south at this place, the west track being for trains going south and the east track being for trains going north. The belt line skirts the city of Memphis, and is used largely for the handling of heavy freight trains by the railroad company. On the evening of this accident, the motorman, with his street car going east, reached the Binghampton crossing, stopped his car, as was his custom. There was a long freight train passing south over the west track of the belt line. The conductor on the street car, as was his custom, alighted from the street car and waited for the freight train going south to pass over the crossing, and as soon as it had done so, he stepped upon the track, his purpose being to ascertain if the way was clear and the crossing safe, and then flagged to the motorman on the street car to proceed upon and across the railroad tracks. Just at this time there was a long freight train approaching from the south, going north on the east track of the belt line. The north-going train was not observed by the street car conductor, and before the motorman could get across the east track with his street car, the engine of the freight train struck the trailer, injuring and killing many people. The plaintiff was a passenger on the street car. The train going south left a cloud of smoke and dust in its trail. The record shows that the tracks at that place were straight, and the headlight on the engine of the freight train was lit. We are unable to say why the street car conductor did not see the freight train approaching from the south. The dust and smoke of the freight train going south may have somewhat obstructed his view. The train going south was operated on a regular schedule, and frequently met this same street car late in the afternoon. The train going north was not operated on a regular schedule, and the street car was not in the habit of meeting the north-bound train at this point. It may be that the street car conductor was relying, at this particular time, upon finding the situation at this crossing as he usually found it, and therefore did not take the pains and trouble to look carefully to see whether or not a train was coming from the south.

There have been other cases before this court growing out of this collision, and the facts in each of these cases are substantially the same, and for a more detailed statement of the facts we make reference to the opinion of this court in the case of Memphis Street Railway Company v. Cavell, 135 Tenn. 462, 187 S.W. 179. We deem it unnecessary to go further into the bloody details of the collision.

It is insisted that the court can be aided in the determination of the question now before us by resorting to the original charter granted to the Memphis & Raleigh Springs Railroad Company on August 9, 1894, which company, originally owned the Raleigh line. In 1894, the Citizens' Street Railway Company (then operating the street railway system of Memphis) leased the property and operating franchises of the Memphis & Raleigh Springs Railroad Company. The Memphis Street Railway Company, successor to the Citizens' Street Railway Company, purchased said lease in 1897. In 1899 the Memphis & Raleigh Springs Railroad Company confirmed said lease and conveyed by deed to the Memphis Street Railway Company, conveying to it the very line upon which the Memphis Street Railway Company had obtained a charter for the purpose of operating a street railway. We find little help in arriving at the application and meaning of the stop statute by resorting to the charter provisions of the Street Railway Company and the Memphis & Raleigh Springs Railroad Company. At most it cannot be contended that the operation and method of operation by another corporation would be binding upon the Memphis Street Railway Company as to what shall be and is operated by it upon said line. If it is beyond the corporate power of the street car company to operate the Raleigh line, as operated by it, then we cannot see how that would lessen the statutory duty, if such duty existed, of another and different corporation. It is said by the Missouri court in the case of Sams v. St. Louis & M. R. R. Co., 174 Mo. 53, 73 S.W. 686, 61 L. R. A. 475:

"The business in which the corporation was engaged may have been such as its charter did not authorize. Still, when the attempt is made to bring the act within the scope of the statute,

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