Louisville & N.R. Co. v. Anderson

• Decision Date: 13 April 1929
• Citation: 15 S.W.2d 753,159 Tenn. 55
• Parties: LOUISVILLE & N. R. CO. et al. v. ANDERSON.
• Court: Tennessee Supreme Court

15 S.W.2d 753

159 Tenn. 55

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

Supreme Court of Tennessee.

April 13, 1929

Certiorari to Court of Appeals, on Appeal from Circuit Court, Maury County; W. B. Turner, Judge.

Action by Eugene Anderson, administrator, against the Louisville & Nashville Railroad Company and another. A judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings certiorari. Judgment entered for defendant.

John B Keeble, of Nashville, George T. Hughes, Jr., of Columbia, and A. W. Stockell, of Nashville, for plaintiff in error.

Fleming & Fleming, of Columbia, for defendant in error.

SWIGGART J.

This action for damages was instituted by Eugene Anderson administrator, on account of the death of his intestate James Anderson, who was killed when an automobile in which he was riding was struck by a train at a grade crossing near Columbia. The defendants were the railroad company and John Martin, the engineer in charge of the train. There was a verdict for plaintiff in the circuit court, upon which judgment was rendered.

The case was carried to the Court of Appeals, by appeal in the nature of a writ of error, to review the action of the learned trial judge in overruling a motion made by the defendants for a directed verdict in their favor. The Court of Appeals affirmed the circuit court. Petition for certiorari, filed by the original defendants, has heretofore been granted, and the case has been argued at the bar of this court.

The defendants predicate their asserted right to a directed verdict upon the ground that no evidence was introduced to sustain the averment of plaintiff's declaration that the accident was the result of negligence on their part, and that the plaintiff's intestate was guilty of contributory negligence, proximately contributing to the accident, which barred any right of recovery.

The declaration contains two counts; the first charging that the defendants did not observe the statutory precautions so as to avoid striking the automobile, and the second charging negligence at common law. The Court of Appeals found that there was no material evidence to show a failure to observe the statutory precautions, and, since this holding is not attacked by petition for certiorari, it is conclusively determined, and need not be considered herein. Brenizer v. Nashville, C. & St. L. Ry., 156 Tenn. 479, 493, 494, 3 S.W.2d 1053, 8 S.W.2d 1099.

The grade crossing upon which the accident occurred is located just outside the corporate limits of the city of Columbia, near the entrance to a military school. The road crossing the railway at this point was being used as a detour road, carrying the traffic of a much-traveled highway, then under reconstruction. The crossing was much used. Approaching the crossing from the west, the direction from which the automobile was coming, the road makes an ascent, beginning about 40 feet from the railroad track, and ending within three or four feet from the nearest rail of the railroad. Acts 1899, c. 356 (Shannon's Code, §§ 1594al-1594a2), obligates railroad companies "to grade to a level with the rails of said railroad and to keep in repair every public road crossing such railroad for a distance of ten feet on each side of such railroad track and between the rails thereof." Louisville & N. Railroad Co. v. State, 137 Tenn. 341, 193 S.W. 113.

The second count of the declaration, the common-law count, predicates liability of the defendants upon the failure of the railroad company to construct and maintain the crossing as required by the statute, and, in connection therewith, avers that the train was operated at a rate of speed so excessive as to constitute negligence, in view of the proximity of the crossing to a populous community and the great amount of traffic passing over the crossing.

The crossing was protected by an electric device known as a "wigwag signal." This consisted of a large disc, suspended over the roadway, which would swing to and fro from the time an approaching train reached a point 1,848 feet from the crossing. The swinging of this signal was also accompanied by the sound of a gong. This device was working at the time of the accident.

It is contended for the defendants that negligence could not be predicated upon the rate of speed of the train, particularly in view of the fact that the crossing was protected by the signal device, and that no causal connection was shown by the evidence between the accident and the failure of the railroad company to construct and maintain the crossing in the manner required by the statute of 1899. It is further contended that this statute is inconsistent with the several statutes creating the state highway commission and providing for a system of state highways, so as to be repealed by implication.

Certain buildings and other structures, located alongside the railroad right of way, were referred to in the declaration and in the evidence as obstructions to the view of the driver and occupants of the automobile. Plaintiff's proof, however, shows that, from a point in the road 70 feet west of the railroad track, there was no obstruction to the view of a train at a distance of 350 feet from the crossing; and that, when 45 feet from the track, the occupants of the automobile had an unobstructed view of the railroad for a distance of 1,060 feet north of the crossing.

At the time of the accident, Anderson was riding from Mt. Pleasant to Columbia, on the rear seat of an automobile owned and driven by Percy Chandler, an eminent lawyer of Maury county. L. S. Hammond, also a prominent member of the Maury county bar, was on the front seat with Mr. Chandler. Anderson lived in Columbia, and, as found by the Court of Appeals, was familiar with the crossing and the conditions there existing. Chandler and Hammond lived at Mr. Pleasant. When some distance from the crossing, Anderson called attention to a train on a "Y" track, near the crossing, which he understood to be a passenger train from Mt. Pleasant. The nature of his comment was excluded from the evidence. He was therefore aware that they were approaching the crossing.

Mr. Hammond, the only survivor of the accident, testified that, when the automobile was within 20 to 30 feet of the crossing, he observed the "wigwag signal" in motion. He thought the signal was being operated by the train above mentioned, which was south of the crossing. He testified that the automobile, a Ford, was being operated up the incline in low gear, and was making an unusual amount of noise, even for an automobile of that type. He therefore did not hear the approach of the train from the north. He testified that the automobile proceeded slowly and without stopping, and without a suggestion of any kind from Anderson; that the low speed resulted in the automobile being on the crossing an appreciable length of time. The automobile had almost cleared the track when it was struck; another 12 inches would have avoided the accident. Mr. Hammond testified that he did not see the train until just before it struck the automobile. His statement that he had to look back to his left to see the engine indicates that the front part of the automobile had cleared the track before he was aware of the impending danger. Up to this time the speed of the automobile had not been changed, and the driver had done nothing to indicate that he was aware of the approaching train. Mr. Hammond testified that he did not know whether Chandler ever saw the train or not.

There is no material conflict in the evidence as to any of the facts. As stated by the Court of Appeals, the question of whether the deceased was guilty of proximate contributory negligence, so as to require a verdict for the defendants, depends for its determination mainly upon the inferences to be drawn from undisputed facts; and a directed verdict would have been improper, unless the only fair and reasonable inference from such undisputed facts is that the deceased was guilty of such contributory negligence. Carey Roofing & Mfg. Co. v. Black, 129 Tenn. 30, 37, 164 S.W. 1183.

The testimony of the engineer, one of the defendants, is that he was operating his train at a speed of 50 miles an hour. He saw the approaching automobile when it was about 60 feet from the track and the train about 360 feet from the crossing. He immediately sounded the alarm whistle and put on the emergency brakes, bringing the train to a stop within 715 feet, which the proof shows to have been a good stop, with the breaks in good...