Kansas City, M. & B. R. Co. v. Williford

• Decision Date: 08 June 1905
• Court: Tennessee Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. et al. v. WILLIFORD.

88 S.W. 178

KANSAS CITY, M. & B. R. CO. et al. v. WILLIFORD.

Supreme Court of Tennessee.

June 8, 1905.

Error to Circuit Court, Shelby County; J. P. Young, Judge.

Action by A. J. Williford as administrator, etc., against the Kansas City, Memphis & Birmingham Railroad Company and others. From a judgment for plaintiff, defendants bring error. Reversed.

C. H. Trimble, for plaintiffs in error. Jere Horn, for defendant in error.

BEARD, C. J.

This suit was brought by the administrator of one Owen to recover damages in the interest of certain statutory beneficiaries against several railroads, constituting what is called in the record the "Frisco System," for inflicting, as is alleged in the declaration, by actionable negligence, injuries on his intestate which soon after resulted in his death. On the trial of the case there was a verdict and judgment for $6,500 against the defendants, and they have prosecuted an appeal, in the nature of a writ of error, to this court.

It is disclosed in the record that the deceased lived in Mississippi, and during the afternoon of the accident arrived in the city of Memphis in company with one Parker. Soon after their arrival these parties saw, at the corner of Georgia street and Kansas avenue, in the act of pulling out of the yards of the defendant railroads, a switch engine moving backwards, with several freight cars attached. Along the rear end of this engine, which was in front in this movement, there ran what is called a footboard. Without invitation from any one, Owen and Parker stepped upon this footboard, Owen taking a position on the west end thereof, and Parker mounting from it to a seat in the cab. On the same end of the engine, and above the footboard, was the tank, on the sloping part of which sat one Middlebrook, who was the foreman of the train crew. The engineer occupied his seat on the east side of the cab, while the fireman was on the west side, dividing his time between shoveling coal and ringing the bell as the engine proceeded. On the footboard with the deceased were two negroes. With these parties occupying the different positions indicated, the engine backing, with the cars attached, proceeded a short distance south, when it turned east on Broadway to its place of destination.

Broadway, as its name indicates, is a wide avenue, devoted, however, exclusively to railroad use. On it are located six parallel tracks, the fourth from the north being the one on which the engine and cars in question were running. Davie avenue crosses Broadway from north to south, at right angles, at a point about one mile east of where Owen and Parker boarded the engine. At the point of intersection there was a flagman.

Approaching this point from the west, the view of objects on Davie avenue, moving north to the crossing, was obstructed by a brick building located at the southwest corner of these two highways, and further, upon the occasion of this accident, by a number of cars which were standing on the track immediately south of the one on which this train was moving.

As the engine approached the crossing, a team of mules hitched to a wagon and driven by a negro came suddenly from the south, out of Davie avenue, upon the track. The uncontradicted evidence is that this driver, as he neared the track, was looking backward, but, turning his head and seeing the engine rapidly coming, he undertook to stop his team and back off. Failing in this, he released the lines and jumped from the wagon, thus saving himself. The mules, however, proceeding across the track, the engine came in violent collision with the wagon. In this collision Owen received the injuries from which his death resulted.

It is undisputed that the flagman was at his post, and as the train advanced he raised his flag to indicate to persons on Davie avenue that it would be dangerous then to attempt to cross; and, further, that, seeing the driver of this team getting dangerously near, the flagman made an ineffectual effort to stop him.

A number of witnesses were examined with regard to the speed at which this engine was running.

As is always the case where a question of this kind depends upon opinion evidence, the rate of speed was variously estimated to be from 6 to 40 miles an hour. It may be assumed, however, that the jury credited the testimony which fixed the speed at the highest rate. The plaintiff below, also for the purpose of showing negligence on the part of the crew in charge of the train, over the objection of the defendants, offered in evidence an ordinance of the city of Memphis, within whose limits this accident occurred, limiting the speed of all trains and engines passing over any of the highways of the city to six miles an hour. There is no dispute but that the engineer, with perfect appliances for that purpose, did all that could be done to stop the train as soon as the mules appeared, and that it was impossible to control it, at the rate at which it was going, so as to avoid the collision.

The record also shows Owen was on the engine without invitation or necessity, and without the knowledge of the engineer or fireman. It is assumed the foreman, who sat on the tank, did see him, from the fact that this position enabled him to do so, and it may be this is fairly inferable from that fact.

The foreman's knowledge, however, that the intestate occupied this position, and his failure to stop the train and order him from it, cannot lessen the responsibility of the intestate. As was said in Railroad v. Bogle, 101 Tenn. 40, 46 S. W. 760, the engine is at all times the most exposed and perilous portion of the train; and it was there held, even in the case of a passenger, who in a fancied emergency mounted the engine to prevent being left by the train, that he lost his right to the high degree of care the law accorded passengers riding in a coach, and could claim nothing more than protection from injury by the willful, wanton, or intentional act of the carrier and its employés. In R. Co. v. Wilson, 88 Tenn. 318, 12 S. W. 720, a baggage master left his proper place on the train, and was riding with the engineer and fireman upon the engine when he was killed in a collision with another train, resulting from the negligence of an engineer in charge of an engine running from an opposite direction to that in which his train was moving. It was there held that, having abandoned his post of duty and sought a more exposed and dangerous position on the train, where he was killed, the railroad was not liable.

We do not deem it necessary to consider the various assignments of error upon the action of the lower court, as we are satisfied there is no theory upon which the verdict and judgment in this case should be maintained. The intestate was voluntarily occupying the most exposed position on the most dangerous part of the train at the time of the collision, and this, as has been seen, without invitation, and without any necessity whatever for his being there. That his presence at this place proximately contributed to his injury is beyond question. No one on the engine save himself was injured, unless it be one of the negroes riding with him on this footboard. If he had been at any other place on that train, so far as we can see, he would have avoided the danger, and, as a matter of course, if he had not been on the train at all, he would not have been affected by this collision. Under these circumstances, we think, as a matter of law he was guilty of such gross contributory negligence as to preclude a recovery. While contributory negligence, where the facts are fairly debatable, is a question which under proper instruction should be determined by the jury, yet, where the facts are incontrovertible, the question then becomes one for the court. Chattanooga Light & Power Co. v. Hodges, 109 Tenn. 333, 70 S. W. 616, 60 L. R. A. 459, 97 Am. St. Rep. 844.

In Warden v. Louisville & Nashville R. Co. (Ala. 1891) 10 South. 276, 14 L. R. A. 553, the plaintiff was a front brakeman, and received the injury which he complained of while sitting on the crossbeam in front of an engine with his legs hanging over in front of the pilot while the train was in motion. The record failed to show that he had any duty to perform, or that any duty could be performed by him while so riding, or that it was in any sense necessary for him at that time to be on the crossbeam.

In that case, after a full citation of authorities, and an able discussion of the rule of law involved, the court held the plaintiff's act in being at that place when the accident occurred "was negligence in se on his part, to be so declared as a matter of law." To this point the court said: "The investigations of the court and counsel have failed to disclose a single case to the contrary, while many courts are on record as holding, either by analogy or directly, that to ride upon the pilot or crossbeam in front of an engine while proceeding along its line of track, without justifying necessity therefor, involves per se such negligence as will defeat an action counting upon injuries received while so...