Louisville & N.R. Co. v. Satterwhite

• Decision Date: 06 February 1904
• Citation: 79 S.W. 106,112 Tenn. 185
• Parties: LOUISVILLE & N. R. CO. v. SATTERWHITE.
• Court: Tennessee Supreme Court

79 S.W. 106

112 Tenn. 185

LOUISVILLE & N. R. CO. v. SATTERWHITE.

Supreme Court of Tennessee.

February 6, 1904

Appeal from Circuit Court, Maury County; Sam Holding, Judge.

Action by D. C. Satterwhite, administrator, against the Louisville & Nashville Railroad Company and others. From a judgment in favor of plaintiff, defendant company appeals. Reversed.

Geo. T Hughes, Willis Bonner, and Percy S. Chandler, for appellant.

E. H Hatcher & Son and H. P. Figuers, for appellee.

McALISTER J.

D. C Satterwhite, as administrator of Henry Dotterer, deceased recovered a verdict and judgment in the circuit court of Maury county against the Louisville & Nashville Railroad Company for the sum of $17,000 for the negligent killing of his intestate.

The company appealed, and has assigned errors.

The cause of action was stated in a declaration comprising eight counts, alleging a breach on the part of the company both of common-law and of statutory duty.

It is alleged in the first count that Henry Dotterer was run over and killed on Bluegrass avenue, one of the main thoroughfares of the town of Mt. Pleasant, by one of corporate defendant's trains of cars, while deceased was crossing its tracks. Hobbs and Douglass, conductor and engineer, respectively, of said train, were also made defendants, and it is alleged in said count that the accident was the result of the concurrent and combined negligence and carelessness of all the defendants. It is further alleged in the same count that the deceased left surviving him as his only heirs and next of kin, his widow and two minor children.

The specific ground of recovery alleged in the second count is that the conductor and engineer, at the time of the accident, were running the cars through the town of Mt. Pleasant at an immoderate and dangerous rate of speed across the public streets of said town, as they had been accustomed to do, and that the accident occurred on one of the main thoroughfares of the town, where there was a large amount of public travel, of every character and description; that the defendant company had knowledge of the habit of the conductor and engineer to thus run its trains at this negligent, reckless, and dangerous rate of speed, and had failed and refused to admonish them and give instructions as to the rate of speed at which they should run said cars. This count also alleged that the death of deceased was the result of the joint and combined negligence of all the defendants.

The specific ground of recovery alleged in the fourth count is that the accident was caused by the joint negligence of all the defendants in running said train of cars without sounding a bell or whistle one mile from the corporate limits of Mt. Pleasant, and at short intervals until the train reached the station, in violation of the express provisions of the statute.

It is alleged in the fifth count that the defendant company had negligently parked a large number of box cars upon its side tracks at and near the point where the accident occurred, in such manner as to obstruct the view of the main track from persons approaching it, and that the running of the cars at such reckless and dangerous rate of speed concurred with the obstruction of the view of the main track by the said box cars, so as to constitute the direct and proximate cause of the accident.

When the declaration was filed, and within the time required by law, defendant company, through its counsel, presented a petition to the state court to remove the cause to the federal court, alleging that the controversy was separable, and between citizens of different states. A demurrer was interposed by plaintiff to this petition for removal, which was sustained by the circuit judge, and the application refused. Defendant company thereupon filed in the Circuit Court of the United States for the Middle District of Tennessee a certified copy of the record in the state court. A motion was there submitted on behalf of the plaintiff below to remand the cause to the state court, which motion was overruled, and thereupon all of the defendants interposed pleas of not guilty.

At the next term of the circuit court a plea was filed on behalf of the defendant company in which was embodied the action of Judge Clark in refusing to remand the case, as a bar to any further action by the state court. A demurrer was interposed to this plea on behalf of the plaintiff below, which demurrer was sustained by the state court. The defendant company then filed its protest against any further action in the cause by the state court, which protest was overruled, and the cause proceeded to trial in the said court, with the result already announced.

The first assignment of error in behalf of the defendant company is that the court below erred in refusing to grant the petition of the defendant the Louisville & Nashville Railroad Company for removal. The action of the circuit court was based (1) upon the ground that the controversy was not separable, but joint, and (2) that there was no diverse citizenship, since the administrator was a citizen of Kentucky, where the defendant railroad company also resided, notwithstanding the fact that the beneficiaries of the deceased, for whose benefit the administrator sued, were citizens of Tennessee.

The court was of opinion that the citizenship of the administrator, and not the citizenship of the beneficiaries, determined the jurisdiction. It would seem that Judge Clark, of the United States court, in refusing to remand the cause, was of a different opinion, and retained jurisdiction of the cause.

An examination of the record has disclosed that no bill of exceptions was taken to the action of the state court in dismissing the petition for removal. The record entry made October 4, 1902, recited that the petition for removal is disallowed, to which ruling of the court the defendant company excepts, and prays that said petition and bond, and the affidavits filed therewith, be made a part of the record in this cause, which is so ordered by the court.

The cause was not heard on its merits until the September term, 1903. If the plaintiff in error desired to have the action of the state court on the petition for removal reviewed by this court, it was necessary, under well-established rules of practice, to take a wayside bill of exceptions, preserving and embodying in the record the petition, bond, affidavits, etc. In the absence of such a bill of exceptions, there is nothing before this court to review on the subject of removal. L. & N. R. Co. v. Fort (Dec. term, 1903) 80 S.W. --.

Passing now to the merits of the controversy, we find in the record certain facts which are practically undisputed. The deceased, Henry Dotterer, was killed on the afternoon of June 20, 1902, by a north-bound passenger train of defendant, traveling from Sheffield, Ala., to Columbia, Tenn., and due to arrive at Mt. Pleasant at 5:13. At the moment he was killed, deceased was in the act of crossing defendant's track at Bluegrass avenue, within the corporate limits of Mt. Pleasant. Deceased was driving in an open buckboard, or no-top buggy, and approaching the track from the east, while the train which caused his death was coming from the south. At the locus in quo the railroad track runs north and south, while Bluegrass avenue runs east and west. It appears that the depot is 663 feet north of the avenue crossing, and the corporate limits of the town begin about 1,084 feet south of the crossing. A water tank referred in in the proof is situated at a point 1,209 feet south of the crossing. It appears that on the east side of the railroad track was a series of phosphate sheds, beginning at a point 135 feet south of the avenue, and extending 700 or 800 feet south towards the tank. These sheds were about 12 feet from the side track, and the side track was about 8 or 10 feet east of the main track. It further appears that on this side track, which extended north and south of Bluegrass avenue, was a long line of box cars, with an opening left on Bluegrass avenue for the passage of travelers along the avenue and across the railroad track. These box cars extended both north and south of the avenue. A public road running nearly parallel with the railroad track, and extending north and south, intersected Bluegrass avenue just immediately east of the railroad track. The proof is that these phosphate sheds obstructed the view of a train approaching from the south to a person traveling on this public road towards its intersection with Bluegrass avenue. It further appears that a line of box cars extending 300 or 400 yards south of the avenue crossing would cut off the view of a train approaching from the south to a person traveling on the public road towards Bluegrass avenue, who would have his back towards a train approaching from the south. It further appears that, four or five car lengths south of where the avenue crosses the railroad track, there was another opening in the line of box cars, 10 or 20 feet in width.

With this description of the place of the accident and its environments, we proceed to notice the immediate facts of the killing.

The deceased was one of the receivers of the American Phosphate Company, and lived at Columbia, but visited Mt. Pleasant daily in the performance of his duties; going out on the morning train, and returning on this train in the afternoon. On the afternoon of the killing, deceased had ridden down to the sheds and office south of Bluegrass avenue, and east of the tracks, probably for the purpose of superintending the weighing of some phosphate rock upon the scales, and the performance of his accustomed duties. It appears that, while deceased was in the office one Herzell said, "Old man you have just got five minutes...