Louisville & N. R. Co. v. Summers

• Decision Date: 03 November 1903
• Docket Number: 1,195.
• Citation: 125 F. 719
• Parties: LOUISVILLE & N.R. CO. v. SUMMERS
• Court: U.S. Court of Appeals — Sixth Circuit

125 F. 719

LOUISVILLE & N.R. CO. v. SUMMERS

No. 1,195.

United States Court of Appeals, Sixth Circuit.

November 3, 1903

In Error of the Circuit Court of the United States for the Middle District of Tennessee.

This is a consolidated cause which includes two actions brought by the defendant in error as the administrator of the estates respectively, of his two brothers, Thomas J. Summers and Robert H. Summers, against the railroad company, to recover damages resulting from an accident which caused the death of both of them, and which, it was alleged, was occasioned by the negligence of the railroad company. The pleadings and the facts in the two actions being identical, they were, by order of the court, consolidated, and tried as one. Separate verdicts and judgments for the plaintiff were rendered. The writ of error is single, and brings up both judgments under the titles of each, and the assignments of error reach both the judgments.

John B Keeble, for plaintiff in error.

Jordan Stokes, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

At the hearing of this cause our attention was attracted to the circumstance that, although it was proposed to review two separate judgments, only one writ of error was sued out and one assignment of errors filed. Technically this was irregular, as the consolidation of the causes in the court below was only for convenience in trying them. The verdict and judgments were separate, as they should have been, and had no dependence upon one another, and no relation, except that they rested upon a similar and to some extent a common record. But the defendant in error makes no objection on that account, and we conclude we may waive the irregularity, as was done by the Supreme Court in similar circumstances in Brown v. Spofford, 95 U.S. 474, 24 L.Ed. 508.

The accident in which the deceased brothers lost their lives occurred at a crossing of the railroad by a highway in the village or 'town' of Hendersonville, Tenn.; the railroad running from northeast to southwest, and the highway almost due north and south. It happened on an afternoon in January, 1902. The decedents were riding south on the highway on a wagon drawn by two horses driven by one of the brothers; the other, riding on the side of the bed of the wagon, faced the west. At a point 50 or 60 yards north of the track, they stopped, and seemed to be looking and listening for trains which might be passing on the railroad. They then resumed their course, and did not again stop before the accident. They first crossed a side track lying 10 or 12 feet north of the main track and parallel therewith, and then, as their wagon was moving over the main track, they were struck by an engine bringing a caboose in train from the northeast at the speed of 35 miles an hour, and were instantly killed, The engine was an extra, not running on the regular time schedule. On the side track east of the crossing was standing a long train of cars, which, with the depot buildings, obscured to some extent trains moving on the main track for a distance of about 600 feet, at which point the track turns to the left, and runs through a cut, further obscuring the track and trains upon it, from the place where the decedents stopped, as above mentioned. But there was testimony tending to show that the tops of cars moving on the main track could be seen over those standing on the side track from where the brothers stopped and looked and listened for approaching trains, and, by inference, the smokestack of the engine also.

There is a statute in Tennessee which alters the common-law rule in respect to the effect of contributory negligence of the plaintiff by prescribing that it shall not absolutely preclude recovery, but shall be taken in mitigation of damages. It was contended for the railroad company that the decedents were so clearly negligent in not again stopping to look and listen before attempting to cross the main track that the court ought to have taken that question from the jury, and not to have assumed it to have been fairly open instructing them. A long and very thorough analysis of the testimony and comparison thereof with the facts of many adjudged cases is made by learned counsel for the plaintiff in error in support of this contention. But we think that, conceding the general rule of the duty to stop and look and listen, it is not, as an entirety, applicable to all circumstances; nor is there any more definite statement of the measure of time, or the intensity and particularity of the attention which must be given, than that the caution a reasonably prudent man would give, in the circumstances, must be exercised. Nor can the distance from the track at which the precaution is to be taken be fixed by any more definite test. It might have been thought by the jury that the decedents took such reasonable precaution in stopping when they did to look and listen, and were justified in being satisfied, by what they observed, that the passage was clear of danger. There was evidence that the place where the deceased parties stopped was better than any other, unless, perhaps, very close to the track, for observing the condition of things on the railroad in the direction from which danger might be apprehended, and that their means of observation there were sufficient to excuse them from again stopping for the same purpose. And the jury might also have thought that the degree of caution which they were bound to exercise was in some measure affected by their supposition that the railroad company would observe its duty, in that locality, of blowing the whistle or ringing the bell of the engine in running through the town. We do not mean to say that such a supposition may be absolutely relied upon as an excuse for not taking due precaution, but it would seem to be an element to be taken into account in considering the reasonableness of the conduct of the decedents, and that the railroad company ought not to complain thereof.

There was a request that the court should direct a general verdict for the defendant, which the court denied. The defendant excepted. But, as we shall hereafter indicate, it cannot be successfully contended that the jury might not have found the defendant at fault, and the controversy was reduced, under the statute above referred to upon the effect of contributory negligence, to a question of damages, and the court could not have charged that the plaintiff was not entitled to a verdict for any amount.

At the close of the judge's charge to the jury the record states that the defendant's counsel requested the...