Kurn v. Weaver

• Decision Date: 06 April 1940
• Parties: KURN et al. v. WEAVER.
• Court: Tennessee Court of Appeals

161 S.W.2d 1005

25 Tenn.App. 556

KURN et al. v. WEAVER.

Court of Appeals of Tennessee, Western Section.

April 6, 1940

Certiorari Denied by Supreme Court June 29, 1940.

Appeal in Error from Circuit Court, Shelby County; H. W. Laughlin Judge.

Suit under the Federal Employers' Liability Act by Werlein Weaver, as administratrix of the estate of Bertha Weaver deceased, against J. M. Kurn and John S. Lonsdale, trustees of the St. Louis & San Francisco Railway Company, for damages for death of plaintiff's intestate. Judgment for plaintiff, and defendants appeal in error.

Affirmed.

Canada & Russell and Cooper Turner, Jr., all of Memphis, for plaintiff in error.

Lowell W. Taylor and R. G. Draper, both of Memphis, for defendant in error.

ANDERSON Judge.

This suit was instituted under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., by Werlein Weaver administratrix of the estate of Bertha Weaver, deceased, against J. M. Kurn and John G. Lonsdale, trustees, who were operating the property of the St. Louis & San Francisco Railway Company by virtue of their appointment in connection with re-organization proceedings of that company under the Bankruptcy Act, 11 U.S.C.A. § 1 et seq. The object of the suit was to recover damages for the death of the plaintiff's intestate who was struck and fatally injured Wednesday, August 6, 1936, by the engine of a freight train being operated in interstate commerce by other servants of the defendant. At the time of her death, Mrs. Weaver, the plaintiff's intestate, who was also her mother, was employed by the defendants as a telegraph operator at Dora, Alabama, and it is conceded that rights and obligations of the parties are to be measured by the Federal Act. There was a verdict for the plaintiff in the sum of $20,000 which was reduced to $12,836.62 by virtue of the suggestion of a remittitur by the trial judge and its acceptance by the plaintiff. A judgment was entered accordingly and the defendants appealed in error. We are confronted with 47 assignments of error, which, even if it were practicable within anything like reasonable limits of an opinion, it would serve no useful purpose to treat separately and in detail.

Defendants assert that under the applicable federal statute, "the fellow servant doctrine is abolished as a defense; contributory negligence mitigates and does not bar a recovery; and assumption of risk is a bar as at common law (except where there has been a violation of certain Federal safety statutes such as the Safety Appliance Act, [45 U.S.C.A. § 1 et seq.] not involved here)."

The plaintiff does not controvert that this is the correct interpretation of the applicability of the act as it stood at the time the accident here involved occurred.

It is expedient to first dispose of a question of practice raised by the defendants. They insist, to quote from the brief, "that the suit being governed by the Federal statute, the question as to whether there is sufficient evidence to go to the jury and whether there is sufficient evidence to support a verdict are to be determined by the Federal decisions and should the appellate court decide that while there was some evidence requiring the case to go to the jury, still the evidence is insufficient to support a verdict, it should set the verdict aside and grant a new trial."

This is nothing more nor less than a contention that this court should weigh the evidence. We do not think that this is the rule in the appellate federal courts and we know it is not the rule in the courts of this state, whose rules and decisions are controlling with respect to such questions of procedure notwithstanding that the substantive rights of the parties are controlled by the provisions of the Federal Employers' Liability Act. See Luck v. Louisville & N. R. R., 167 Tenn. 350, 69 S.W.2d 899; Nashville, C. & St. L. R. R. v. Hines, 20 Tenn.App. 1, 94 S.W.2d 397, and cases cited; Rocco v. Lehigh Valley R. Co., 288 U.S. 275, 53 S.Ct. 343, 77 L.Ed. 743; Chesapeake & O. R. Co. v. De Atley, 241 U.S. 310, 317, 36 S.Ct. 564, 60 L.Ed. 1016, 1021. See, also, Roberts Federal Liability of Carriers, Vol. 2, Sec. 812, p. 1563, and Sec. 1031 et seq.

Under the practice in this state it is the function of the trial judge, upon consideration of the motion for a new trial, to determine whether the party upon whom the burden of proof rests has supplied the requisite quantum of evidence, and in cases tried with the intervention of a jury his approval of the verdict is conclusive on that question; for the reviewing court considers not whether the required amount of evidence was furnished but only whether the verdict is supported by any material evidence. These rules are too well established to require citation of authority.

At the time the engine struck her, the deceased was attempting to cross the main line of railroad for the purpose of taking a position near an adjacent track known as the "passing track" so as to be able, as the train passed, to hand up to the fireman by means of a hoop loosely attached to a staff, certain train orders that she had been directed to deliver to the crew of train No. 136, west-bound from Birmingham.

It was charged in the declaration that throughout the period of deceased's employment at the station of Dora, this train was operated daily, and customarily came into that station on the "passing track" instead of on the main line, after having entered the former about one mile from the station, and received its orders in the manner above indicated.

The theory of the plaintiff's cause of action was that the existence of this custom gave rise to a duty on the part of the defendants' servants in charge of that train that did not otherwise necessarily exist, to keep a proper lookout and give seasonable warning of the train's approach whenever the custom was departed from, in anticipation that the deceased, in reliance on the custom, might be oblivious of the fact that the train was on the main line and hence subjected to a grave danger in the performance of her duty to deliver any train orders she might have; and that the failure to perform this duty proximately caused the death of plaintiff's intestate. In other words, plaintiff successfully maintained in the trial court that the existence of this custom and the failure to observe it on the particular occasion here in question, coupled with the physical surroundings, especially the fact that the tracks curved sharply around a bluff just east of the depot, constituted special circumstances rendering inapplicable the general rule to the effect that ordinarily a railroad company owes no duty of keeping a lookout, giving a signal of approach or reducing the speed of trains in anticipation that sectionmen, flagmen and others employed along the line may be found on or near the tracks.

The defenses relied upon in bar of the action, generally speaking, were that the defendants were guilty of no actionable negligence; and that the deceased assumed the risk involved in the conduct that caused her death.

More specifically, the defendant contends in this court that there was no evidence to warrant the conclusion necessarily reached by the jury to the effect that there was such a custom as that relied on by plaintiff, but that if there were, the legal consequences were not such as the plaintiff supposes and as the trial judge held.

It is manifest, therefore, that the existence of the custom and its effect, if it did exist, upon the relative rights and duties of the parties are of vital importance.

Under the practice in this jurisdiction the issues having a factual basis must be disposed of by considering the evidence in the light most favorable to the plaintiff, disregarding that opposed thereto as having been rejected by the jury and trial judge in the exercise of their function to conclusively determine disputed questions of fact. Observing this rule, we proceed to state the material facts which the evidence tended to show.

Dora Alabama, the station at which the deceased was employed, is a small community in northern Alabama located on the main line of what is commonly called the "Frisco" Railroad, between Birmingham and Memphis. That section of the country is apparently hilly and the railroad tracks in the immediate vicinity are winding. The railroad employees who testified referred to the railroad as running north and south, but the case was briefed and tried upon the theory that the tracks in the neighborhood ran east and west, and as a matter of convenience we will so regard it. The physical layout in the vicinity of the scene of the accident is an important factor. There are a number of tracks lying immediately in front of a station house that faces north and is located about 18 feet south of the main line, which is the southernmost track. Next to this is what is known in the record as the "passing track", which is connected with the main line on the east by means of two switches located at different points, one about 1,275 feet from the station and the other "not quite a mile" from that point. There is also a connecting switch or switches located west of the depot. The "passing track" can be entered by a train from the main line at either point. Facing west, there is a nine degree curve to the right in the main line immediately east of the station and also in the other six or seven tracks. This curve seems to be the west end of an "S" or "reverse" curve. The topography of the country prevents the full curve from being seen from the station, the tracks bending around a high bluff. One of the defendants' witnesses testified that the station house was located "in the curve", but a number of photographs in the record indicate that this building is located just west...