McCampbell v. Central of Georgia Ry. Co.
| Decision Date | 05 December 1952 |
| Citation | 30 Beeler 594,194 Tenn. 594,253 S.W.2d 763 |
| Parties | , 194 Tenn. 594 McCAMPBELL v. CENTRAL OF GEORGIA RY. CO. |
| Court | Tennessee Supreme Court |
Graham & Van Derveer, Chattanooga, for plaintiff-in-error.
James H. Anderson, Chattanooga, for defendant-in-error.
Mrs. McCampbell commenced this action to recover damages for the death of her husband. He was killed by one of the defendant's trains in a railroad crossing accident. Mrs. McCampbell has appealed from the judgment of the Court sustaining a demurrer to the declaration containing three counts.
The second count alleges a violation of Code Section 2628(1) and (2). Code Section 2628(1) and (2) requires the railroad to sound the whistle or bell of the locomotive at certain distances and intervals when approaching a public road crossed by its tracks, provided such road crossing has certain signs marked as provided by Code Section 2659.
Mrs. McCampbell's declaration alleged that her husband, while driving his automobile over a public street, approached this railroad crossing over which was passing a moving train of the defendant Railroad Company, and that her husband drove his automobile into the side of one of the freight cars as it was passing over the crossing, whereby he was thrown from the automobile, and under the wheels of the moving freight car, and instantly killed.
The Trial Court held that Code Section 2628(1) and (2) did not apply to a railroad crossing accident in which the vehicle traveling along the street or highway was driven into the side of a moving train which was occupying the crossing. For that reason the Court was of the opinion that, in so far as it applied to Count 2, the declaration did not state a cause of action.
Subsection (3) of Code Section 2628 requires the sounding of the bell or whistle within certain distances and intervals when approaching or leaving a town or city. In Southern Railway Co. v. Simpson, 149 Tenn. 458, 261 S.W. 677, it was held that this subsection did not apply to the case of an automobile running into the side of a train at a road crossing. The opinion observed that Section 2628(2) and (3) were designed to prevent persons from entering upon the track. Tenn. Central Railway Co. v. Page, 153 Tenn. 84, 95-96, 282 S.W. 376, 379, calls attention to the Simpson case, supra, and closes with the statement that Code Section 2628 does 'not inure to the benefit of an automobile driver who willfully ran into the side of a train while standing on or passing over the crossing'.
It is conceded in behalf of Mrs. McCampbell that the construction placed upon this code section by the decisions mentioned was correct at the time. It is insisted, however, that changed social and economic conditions now require a different construction of the statute. That is a matter which addresses itself solely to legislative discretion. As Code Section 2628 is now drawn it does not apply to the case of an automobile running into the side of a train at a road crossing. Hence, in view of the allegations of the declaration Count 2 stated no cause of action.
Because the declaration showed on its face that the deceased drove his automobile into the side of the train as it was passing over the crossing, the Court was of the opinion that this was an allegation amounting in law to an admission of proximate contributory negligence barring a recovery under the common law count, and under the third count alleging a violation of a city ordinance.
The accident occurred in Chattanooga at night at the point where South Broad Street is crossed at right angles by the tracks of the defendant Railway Company. It is alleged that much traffic passes over this street, and that the train approached this crossing on that street at a reckless and dangerous speed and without giving a warning of any character that it was in the process of passing over the crossing. It is not alleged that there were any obstacles or physical conditions to obstruct the view of deceased as he approached on South Broad Street this railroad track which crossed Broad Street at a 90 degree angle, and, thus, directly within the view of the deceased. In that respect the case is to be distinguished from Jones v. Louisville and...
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Louisville and Nashville Railroad Co. v. Farmer
...his recovery, though the negligence attributed to a defendant consists in the violation of an ordinance. McCampbell v. Central of Georgia Ry. Co., 194 Tenn. 594, 599, 253 S.W.2d 763. Remote contributory negligence goes in mitigation of damages. Bejach v. Colby, 141 Tenn. 686, 691-692, 214 S......
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