Louisville & N.R. Co. v. Martin

• Decision Date: 22 February 1905
• Citation: 87 S.W. 418,113 Tenn. 266
• Parties: LOUISVILLE & N. R. CO. et al. v. MARTIN.
• Court: Tennessee Supreme Court

87 S.W. 418

113 Tenn. 266

LOUISVILLE & N. R. CO. et al. v. MARTIN.

Supreme Court of Tennessee.

February 22, 1905

Appeal from Circuit Court, Shelby County; J. P. Young, Judge.

Action by Jennie Martin, administratrix of Thomas Gillooley deceased, against the Louisville & Nashville Railroad Company and others. From a judgment for plaintiff, defendant above named appeals. Affirmed.

Jno. P Houston and T. B. Turley, for appellant.

J. B. & C. W. Heiskell and T. F. Kelly, for appellee.

McALISTER J.

Jennie Martin, as administratrix of Thomas Gillooley, deceased recovered a verdict and judgment against the Louisvile & Nashville Railroad Company for the sum of $10,000 as damages for the negligent killing of her intestate. Pending the motion by the company for a new trial, the court suggested a remittitur of $3,000, which was accepted by the plaintiff, and a judgment was thereupon entered in her favor for $7,000.

The company appealed, and has assigned errors.

Plaintiff's intestate, Thomas Gillooley, was a flagman at the crossing of Dean avenue and Broadway, in the city of Memphis, and had been engaged in that occupation for about 15 years. He also flagged at Poston avenue, on the south side of Broadway, 83 feet east of where Dean avenue enters Broadway.

Broadway is practically monopolized by the railroad companies in the construction of their tracks. There is no roadway for vehicles passing longitudinally on Broadway. The tracks of the different railroads extend its entire length, and are about 12 feet from center to center. The Frisco System has two tracks; the Southern, two; the Nashville, Chattanooga & St. Louis and the Louisville & Nashville jointly have one track; and the Union Railway has two.

It appears from the record that on the evening of November 24, 1902, the mangled body of Thomas Gillooley was found a few feet east of Dean avenue, on the track of the Nashville, Chattanooga & St. Louis Railway, which track was also used by the engine and trains of the Louisville & Nashville Railroad Company. The Louisville & Nashville Railroad Company receives freight from certain railroad companies in South Memphis by way of Broadway, and also delivers freight to various industries along Broadway and other points. For this purpose the company has switching crews, whose duties are to handle this freight and to switch cars at the North Memphis Station when not engaged in South Memphis work. The deceased was killed by an engine drawing eight or nine box cars which had been collected along Broadway, and were being carried to some of the switching points of the company. The engine at the time was moving backward; that is to say, the tender on the engine was in front as it moved eastward, drawing the box cars.

It is claimed by plaintiff below that it was not a switch engine, nor engaged in switching, but was a regular road engine, engaged in transferring cars from defendant's road south to its north and intermediate stations. It was backing on the Nashville, Chattanooga & St. Louis main track at the rate of from 10 to 30 miles an hour, as the speed was variously estimated by witnesses for plaintiff. There was also evidence adduced by the plaintiff tending to show that the bell was not rung, nor was there a lookout or headlight on the train. It is conceded on behalf of the defendant company that there was no one on the tender, then in front, on the lookout ahead.

Gillooley, it appears, was employed as a flagman by the several railroads in obedience to the requirements of a municipal ordinance. He was employed by the Frisco System, and was a flagman at Dean avenue and Broadway when the Louisville & Nashville began to operate its trains on Broadway. The record discloses that the flagmen were paid by the Frisco System, and the other companies prorated the salaries. The Frisco System paid two-fifths; the Southern, two-fifths; and the Nashville, Chattanooga & St. Louis, one-fifth--of said salaries, which amounts were regulated by the number of tracks each company had on Broadway. The Louisville & Nashville Railroad Company paid its pro rata of Gillooley's salary to the Nashville, Chattanooga & St. Louis Railway. But notwithstanding this traffic arrangement between the several railroads, the fact is established that Gillooley was employed by the Frisco System, and that he received his orders from that system, which alone controlled and directed his actions. He was on the pay roll of the Frisco System, and his salary was paid to him direct by that system; and, according to the testimony, the other railroads had no power to discharge or direct him in his movements. It is true, the deceased flagged for the Nashville, Chattanooga & St. Louis Railway, the Louisville & Nashville Railway, and the Southern Railway, as well as for the Frisco System, but he was directed to do so by the Frisco System. It appears that, under an agreement between the superintendents of the different companies operating trains on Broadway, it was stipulated that the Frisco System should employ the flagmen needed by the different companies, and Gillooley was employed under this agreement.

Plaintiff's evidence tends to show that Gillooley was killed about 5:30 o'clock in the afternoon. It was getting dark, and drizzling rain. According to the testimony, Gillooley had walked east on the Nashville, Chattanooga & St. Louis track (also occupied by the Louisville & Nashville Railroad), and was killed on that track while flagging, or just after he had flagged, to warn persons at Poston avenue, of an approaching Southern train. There was also evidence tending to show that deceased tried to get off the track when he saw the train approaching him from the rear, but it was in such close proximity to him that he had no chance to escape. It appears there was some water between that track and the parallel track just south of it, and there is some evidence that deceased hesitated to leave the track on account of being compelled to get in the water. An ordinance of the city adduced in evidence forbids the running of engines and trains within the corporate limits of the city at a rate of speed exceeding six miles an hour. It is established by the evidence that the accident did not happen within the yard limits of the Louisville & Nashville Railroad. The place of the accident was 12 miles from the company's north station, and about three-quarters of a mile from its south station. As shown, these stations are about 13 miles apart, and, in order to pass from one to the other, the defendant company uses part of the main track of the Nashville & Chattanooga Railway. As already stated, at the time of the accident this train was delivering cars and freight to the industries along Broadway from the north to the south station. There is evidence tending to show that no other train passed over Broadway at the point where the accident occurred between the hours of 5 and 6 p. m. on November 24, 1902, excepting this Louisville & Nashville No. 340 train. As stated before, evidence was adduced on behalf of the plaintiff tending to show that no bell was rung or whistle blown. Witnesses testify that, if there was any light at all on the tender of the moving train, it was only a dim light from a lantern. The evidence also shows that the duties of the deceased were to admonish people on Dean and Poston avenues of the approach of trains, but not to stop the trains, since that was the duty of the switchman. The evidence also shows that Gillooley was a careful, sober man, and attentive to his duties. It is stated that during his service of 14 years as flagman he had not lost exceeding 10 days. It is insisted that it was not negligence for deceased to walk on the Nashville, Chattanooga & St. Louis track in going from Dean to Poston avenue for the purpose of flagging, but that it was really the safest place he could have walked. The evidence shows there was a sharp declivity on the north side of this track, and south of it was a depression that held water, and there are also many other parallel tracks. There is also evidence to show that the Nashville, Chattanooga & St. Louis track was the usual place where people walked, and where deceased had been accustomed to walk in the performance of his duties. It appears there was no sidewalk or walkway north of the Nashville, Chattanooga & St. Louis track. The first of the two Southern tracks lies next to the Nashville & Chattanooga track, and between those two tracks, from Dean to Poston avenues, the ground is lower than the tracks; causing a depression in which water accumulates to the depth of four inches.

The contentions of fact made on behalf of the plaintiff in the court below are thus summarized by learned counsel, viz.:

(1) That at the time of the accident the defendant company was not engaged in switching operations within the limits of its yard, but was running a road engine outside of its yard, within the corporate limits of the city of Memphis, at a rate of speed exceeding six miles an hour, which was in violation of the prohibition of the city ordinance.

(2) That it was running this train backwards in a populous part of the city, and had thus disabled itself from complying with the requirements of the state law requiring it to have the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead.

(3) The alarm whistle was not sounded, the brakes put down, and every means employed to stop the train and prevent the accident, although deceased was on the track ahead of the engine, and his perilous position was imminent.

(4) It is further insisted, independent of the requirements of the statute, these duties were all enjoined upon the defendant company at common law, and it is liable for a breach of such duties, whether t...