Little v. Nashville, C. & St. L. Ry. Co.

• Decision Date: 22 November 1954
• Citation: 281 S.W.2d 284,39 Tenn.App. 130
• Parties: Willie James LITTLE, McKinley Van Arsdale, Elbert Hurst, Harold Williams, Plaintiffs in Error, v. NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY CO., Defendant in Error.
• Court: Tennessee Court of Appeals

Page 284

281 S.W.2d 284

39 Tenn.App. 130

Willie James LITTLE, McKinley Van Arsdale, Elbert Hurst Harold Williams, Plaintiffs in Error, v. NASHVILLE, CHATTANOOGA AND ST. LOUIS RAILWAY CO., Defendant in Error.

Court of Appeals of Tennessee, Western Section, at Jackson.

Nov. 22, 1954 Certiorari Denied by Supreme Court March 11, 1955.

Russell Rice and J. L. Harrington, Jackson, for plaintiffs in error.

Moss & Benton, Jackson, for defendant in error.

BEJACH, Judge.

The parties will be styled as in the lower court, plaintiffs and defendant; the plaintiffs being the plaintiffs in error in this Court and the defendant, the defendant in error here. This case involves the appeals of four individual plaintiffs, all of whose suits arose out of the same accident, and whose suits against the defendant Railway Company were all consolidated and heard together. One bill of exceptions and one assignment of errors was filed on behalf of all four in this Court. All of the plaintiffs, except Harold Williams, sued for personal injuries received in the accident, and he sued for damage to his truck in which the other three plaintiffs were riding at the time of the accident.

Each plaintiff sued the defendant in four counts. The first count alleged common law negligence, in that the defendant operated its train at a high rate of speed over a crossing which was known to the defendant to be highly dangerous; that the crossing was in such a dangerous condition because of an obstruction permitted to exist upon the right of way of defendant; that the train of defendant was being operated without a proper lookout ahead being maintained; that no whistle or bell signal was given to warn the traveling public of the approach of the train to the John Williams road crossing; that the defendant's crew members failed to observe the plaintiffs in a position of peril when said plaintiffs could be so observed; and that said defendant's servants and agents failed to apply the brakes and sound the alarm whistle and to do all in their power to stop the train after said plaintiffs were observed to be in a position of peril. The second count of each declaration alleged a negligent failure on the part of the defendant to observe Subsection (2), Section 2628 of the Code of Tennessee, in that said defendant failed to blow the whistle or ring the bell on the locomotive as the train approached the John Williams road crossing. The third count of each declaration alleged a negligent failure on the part of the defendant's crew to comply with Subsection (4), Section 2628 of the Code of Tennessee, in that said defendant failed to have anyone on the lookout ahead of said train; that if a lookout was being maintained, said lookout failed to see the plaintiffs in a position of peril when they should have been so seen; that the plaintiffs were an obstruction upon said road, and that the defendant's agents and servants failed to sound the alarm whistle, put down the brakes and use every possible means to stop the train and prevent the accident. The fourth count in each declaration alleged a negligent violation on the part of the defendant of Section 2657 of the Code of Tennessee, in that said Company negligently failed to keep the crossing at the John Williams road in a lawful repair as required by said Section.

To all of these declarations, the defendant filed pleas of not guilty and contributory negligence.

At the end of the plaintiffs' proof, the defendant filed motions for peremptory instructions to the jury which were overruled. Said motions for peremptory instructions were renewed at the end of all the proof, at which time the Court sustained the motion in each of these cases on the statutory counts, but overruled them on the common law counts. The exact language of the Court as reflected in the bill of exceptions is as follows:

'The Court: (At the conclusion of argument on the motion) The motion will be sustained in each of these cases on the statutory counts; it is overruled on the common law counts.'

After the charge of the trial judge, no exception to which is taken by the assignments of error in this Court, the jury returned a verdict in favor of the defendant. After a motion for a new trial had been overruled, the plaintiffs filed their bill of exceptions and perfected an appeal in the nature of a writ of error in each of the four cases, one bill of exceptions being filed for all four cases.

The facts of the case as appears from the testimony of the witnesses, with reference to which there is very little conflict, were as follows:

Plaintiff, Willie James Little, justified that the three plaintiffs, Little, Hurst and Van Arsdale, were riding in a truck belonging to the plaintiff, Harold Williams, which truck was being driven by Willie James Little. The truck turned south on a road in Madison County, known as the John Williams road, towards the N., C. & St. L. right of way, across which the tracks run east and west. The John Williams road from Chester Street in Jackson, all the way up to the railway track, was extremely muddy and the truck approached the track at a speed of about five miles per hour and in a low gear, because of the condition of the road, which was rough, muddy and slick. The road was uphill towards the track, and the driver, Little, was having trouble getting up the hill with the truck because of sliding and slipping, and he was going about as slow as he could go and still make progress. The plaintiff, Little, testified that as he approached the track, the windows on his truck were down, and that he listened for a train and heard neither whistle nor bell, and that he would have heard it if it had been blown,--that as he approached the track, he looked first to the right when at a distance of twenty feet from the first rail, and saw no train; that he could not see until within twenty feet of said track, and that when he looked to the right, he saw no train; that the road was so muddy right up to the rail, and he was having trouble getting up to the track, and that the truck was taking his attention, and he never did see the train until it hit him.

The testimony of Little is corroborated by the testimony of Van Arsdale and Hurst, which is to the same effect as that of Little.

Mr. John Williams, owner of the John Williams Steel Company, and for whom the road upon which the accident occurred is named, testified that he had lived on the John Williams road about thirty years; that he is no relation of the plaintiff, Harold Williams; that the road leads to a small community and is the only route to Chester Street in Jackson, for which it is commonly used; that a person going south on the John Williams road had to be within twenty-five or thirty feet of the track to have a view of 400 feet to the right, and that to have an unlimited view, you had to be within ten feet of the track; that there is a 14 foot deep cut west of the road to block the view of an approaching train; that this cut is 4 or 5 feet high right at the crossing and tapers up to 14 feet; and that the cut is on the railroad property.

Plaintiff, Harold Williams, testified that he drove over the road in question, the afternoon following the accident,--a few hours after same had occurred;--that it was muddy and slippery from Chester Street to the track.

It is unnecessary to quote the testimony of the plaintiffs' other witnesses.

The engineer of defendant's train, Mr. C. B. Morris, testified that as he approached the John Williams road crossing, his train was making between 52 and 55 miles per hour, which was as fast as he could go; and when very close to the crossing, his fireman said, 'Keep blowing', and that he assumed the fireman had seen something coming, and that he continued to blow until the fireman hollaed 'Stop' or 'Shoot her'; that he was about 100 feet from the crossing at the time the fireman called 'Stop', or, 'Shoot her'; that at that time, he was making a speed of between 52 to 55 miles an hour; that he was not very far from the crossing when the fireman told him to 'Keep blowing', and that it was not over 100 feet from the crossing; that it was shortly after that, that the fireman told him to 'Shoot her', at which time he ceased blowing and went for the brake. He testified further that this truck could have been seen by the fireman for a distance of 200 to 250 feet west of the road; that his train was light and that his brakes in emergency would slow him perceptibly in 200 feet; that it is not customary for a fireman to holla 'Keep blowing', except when someone is in a position of danger; that if the fireman had hollaed 'Stop', or, 'Shoot it' at the 100 foot distance instead of 'Keep blowing', he could have had the speed of the train pulled down 'Right smart' before reaching the road; that the front of his engine hit the truck in the 'engine part'; and that he never did see the truck.

Mr. M. L. Brown testified for the defendant,--that he observed the accident; that the train was running about 40 miles an hour; that the truck was running about six miles an hour; that he saw the actual impact; that the train hit the truck right over the right front fender of the truck; that he had worked on the water line in the vicinity of this crossing for some time, and that at the time of this accident, the conditions shown in defendant's exhibit number 8, did not prevail.

The fireman, O. B. Caneer, testified that the train approached the John Williams road at a speed of 50 miles per hour; that he saw the truck when the train was '200 feet' from the crossing, and that the truck was 75 feet from the rails at this time and moving 'very slowly'; that he had a clear view of the truck at 200 feet and could even see behind it; that there was nothing to block his view of the truck until he got within 200 feet and that he might have seen it, but did not; that he was not looking for a truck before getting within 200 feet of the crossing; that he observed the truck...