Louisville and Nashville Railroad Co. v. Farmer

• Citation: 220 F.2d 90
• Decision Date: 02 March 1955
• Docket Number: No. 12146,12147.,12146
• Parties: LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a Corporation, Appellant, v. Floyd FARMER, Administrator of the Estate of Donald Lewis Farmer, Deceased, Appellee. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a Corporation, Appellant, v. Willie FARMER, Administrator of the Estate of Thomas Donald Farmer, Deceased, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

220 F.2d 90 (1955)

LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a Corporation, Appellant, v. Floyd FARMER, Administrator of the Estate of Donald Lewis Farmer, Deceased, Appellee.

LOUISVILLE AND NASHVILLE RAILROAD COMPANY, a Corporation, Appellant, v. Willie FARMER, Administrator of the Estate of Thomas Donald Farmer, Deceased, Appellee.

Nos. 12146, 12147.

United States Court of Appeals, Sixth Circuit.

March 2, 1955.

COPYRIGHT MATERIAL OMITTED

David M. Keeble, Nashville, Tenn. (John J. Hooker, Walker, Hooker, Keeble, Dodson & Harris, Nashville, Tenn., Charles Willett, Springfield, Tenn., on the brief), for appellant.

Fyke Farmer, Nashville, Tenn., for appellees.

Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

The appeals by the Louisville and Nashville Railroad Company in these two cases (consolidated for trial in the district court) are from judgments entered on jury verdicts. The jury awarded $30,000 damages to each appellee for the death of his intestate. The causes of action arose out of the same accident in which an automobile driven by Thomas Donald Farmer and occupied, also, by his nephew of nearly the same age, Donald Lewis Farmer, and three others, collided with a fast passenger train belonging to appellant in Springfield, Tennessee, where the railroad company's tracks intersect Main Street, which is both a state highway and a United States highway. Both Farmer boys lost their lives in the accident.

The original complaint and the amendments thereto in each case charged appellant with the violation of the Railroad Precautions Act of Tennessee, section 2628(4) of the Code of Tennessee, with the violation of the speed ordinance of the City of Springfield, and with common law negligence. After all the evidence in the case had been received, the attorney for appellees abandoned his position based on common law negligence, following the statement of the trial judge that he was inclined to think appellees' intestates had been guilty of contributory negligence under the common law. This left for decision the issues of violation of the statute and of the city ordinance of Springfield.

The Tennessee Railroad Precautions Act, section 2628(4) of the Code of Tennessee, provides: "Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to stop the train and prevent an accident."

The pertinent city ordinance provides that it shall be unlawful for any railroad company to run, pull, or push its trains, cars, or engines at a greater speed than thirty miles an hour within the limits of the boundaries of Springfield, Tennessee.

Appellant urges that the trial court should have granted its motions for directed verdicts and should have dismissed the complaints in so far as they were based on the alleged violation of section 2628(4) of the Tennessee Code. Conceding the absolutism of the statute, if violated, appellant points out that appearance of an obstruction upon the road means, by interpretations of the statute by the Supreme Court of Tennessee, appearance on the railroad track, or so near thereto as to be within striking distance of the train; and that, unless and until such situation exists, the case must be decided upon common law principles and not under the provisions of section 2628(4). This proposition seems well established by the following Tennessee authorities: Gaines v. Tennessee Cent. R. Co., 175 Tenn. 389, 393, 135 S.W.2d 441; Tennessee Cent. Railroad Co. v. Binkley, 127 Tenn. 77, 153 S.W. 59; Chesapeake & N. Ry. v. Crews, 118 Tenn. 52, 99 S. W. 368; Jones v. Louisville & Nashville R. R., 192 Tenn. 570, 574, 241 S.W.2d 572. See also opinions of this court construing the Tennessee statute in consonance with appellant's interpretation: Rogers v. Cincinnati, N. O. & T. P. Ry. Co., 6 Cir., 136 F. 573 opinion by Judge Lurton, at one time Chief Justice of Tennessee; Curtis v. Louisville & N. R. Co., 6 Cir., 232 F. 109, 110; Cincinnati, N. O. & T. R. Co. v. Galloway, 6 Cir., 59 F.2d 664, 666.

The two deceased Farmer boys were respectively 18 and 19 years old. One of them, Thomas Donald Farmer, was driving the automobile at the time of the accident; the other, Donald Lewis Farmer, was sitting next to him on the front seat with another boy, Bobby Richards, on his right. Two other youngsters of about the same age, Herschel Crawford and Ray Baker, were on the back seat of the car. The party was driving around in Springfield after midnight. Of the three who survived the accident, one, Herschel Crawford, was called as a witness by the appellees; another, Ray Baker, was called by appellant; and the third, Bobby Richards, was put on the stand by appellees but testified that he did not know what had happened and could not remember being in the accident.

At the railroad crossing on Main Street in Springfield, there is a main track as well as a sidetrack, the latter being nearest the approach from which the Farmer automobile came. The view of the operator of a motor vehicle driving in the direction in which the Farmer car was proceeding is partially obstructed by a building at the northeast corner of the crossing. An automobile would necessarily have to be driven on to the sidetrack before its driver could see a train on the main track if a train were approaching from the direction in which appellant's train was coming at the time of the accident. It is also true that the engineer and the fireman on such locomotive could not see an automobile approaching the crossing from the direction in which the Farmer car was being driven, unless that vehicle had proceeded far enough to be on the sidetrack.

Joe Thorpe and Roy Ashbranner, two city policemen at Springfield, had their police car parked near the railroad crossing and were eyewitnesses to the accident. Thorpe was standing in front of the police car facing the approaching train. He stated that he could see up the track for a mile or more. He saw the automobile in which the boys were riding approach the railroad track. He said that another car, probably 500 or 600 feet ahead of the Farmer car, had passed over the crossing. The witness described the warning signal at the crossing as having "red lights on it and bells on both sides of the track." He stated that the first car crossing the tracks — that of Odell Poole — had not stopped before crossing, although the crossing signal was operating at the time. He estimated the distance of the train from the crossing at the time Poole's car went over it at "something around two thousand feet up the track." The car in which the boys were riding was not coming very fast, but at a "normal rate of speed." The witness narrated that, as the Farmer automobile came up to the track, the bell of the approaching engine was ringing, the whistle was blowing, and the red lights were flashing. He testified that the automobile came "almost to a stop in something like nine or ten feet from the main line track" on the farthest rail of the sidetrack next to the main line. He said that the vehicle "hesitated" there for a second or so and then lunged all at once and was hit by the train. Thorpe stated that he was standing about 55 feet from the point of collision. He estimated the speed of the train at the time of impact at around 50 miles per hour. His estimate of speed was doubtless accepted by the jury as of more than ordinary value for the reason that he had formerly been employed as fireman on a railroad engine.

The other police officer, Ashbranner, testified that as the boys' automobile came toward the crossing it did not stop but merely slowed up. He estimated the speed of the train as it struck the car at about 60 miles per hour. He said that the signal lights were blinking and shining on the crossing, and that he could hear the "train blow" when it was about half a mile away.

Odell Poole, an automobile service manager in Springfield, was another witness for the appellees. He was returning after midnight from visiting his wife who was confined in a hospital and, without stopping, he had passed over the railroad crossing in front of appellant's Georgian train when it looked as if the train was right in his "face," so near that it had frightened him. He testified that, before crossing the railroad tracks, he saw in the mirror of his automobile the lights of a car so close behind him that he didn't know whether to stop, or to try to get across the tracks; that he had made a "quick thinking decision" to attempt to make it across.

Herschel Crawford, testified that he had been picked up by the Farmer boys in front of a restaurant in Springfield when offered a ride home. He was seated on the back seat of the automobile with Ray Baker. He said that they were traveling down Main Street and had pulled up at a crossing where the automobile was stopped; and that he saw the "flicker lights about that time." He said that Thomas Farmer, who was driving the automobile, "pulled it down in low gear and started again and that's the last thing I remember." He was knocked unconscious for a few minutes and was taken to a hospital.

The engineer on appellant's train on the night of the accident, Charles Stanfield, who had worked as an engineer for forty-seven years and had been retired prior to trial of these cases, testified that, as his engine approached the Main Street crossing in Springfield, he was operating two headlights, one stationary and the other oscillating; that the engine's whistle was blowing and the bell was ringing as the train went into the crossing. He estimated his speed at that time as about 30 miles an hour. Stanfield said that his fireman had been sitting down, but that when they "got close to the crossing" and he began to blow the whistle, the fireman...