Minton v. Southern Railway Company, 16755.

• Decision Date: 11 October 1966
• Docket Number: No. 16755.,16755.
• Citation: 368 F.2d 719
• Parties: Beryl W. MINTON, Carl Wiley, and Frank Green, Plaintiffs-Appellees, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

368 F.2d 719 (1966)

Beryl W. MINTON, Carl Wiley, and Frank Green, Plaintiffs-Appellees, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

No. 16755.

United States Court of Appeals Sixth Circuit.

October 11, 1966.

Clyde W. Key, Knoxville, Tenn., Key & Lee, Knoxville, Tenn., of counsel, for appellant.

Ralph E. Vineyard, Chattanooga, Tenn., H. H. Gearinger, Chattanooga, Tenn., on brief; Gearinger & Vineyard, Swafford & Taylor, Chattanooga, Tenn., of counsel, for appellees.

Before WEICK, Chief Judge, PHILLIPS, Circuit Judge, and CECIL, Senior Circuit Judge.

PHILLIPS, Circuit Judge.

A seventy-two year old widow was killed while walking through appellant's railroad yard at New Tazwell, Tennessee. In an action for her wrongful death instituted by the children of the decedent against the railway company, the jury returned a verdict of $10,000.

Appellant's motion for a directed verdict was overruled by the district judge, the Honorable Robert L. Taylor. Appellant stood on its motion for a directed verdict and introduced no evidence. Following the return of the verdict, appellant moved for a judgment non obstante verdicto, which also was denied by the district judge.

The questions presented on this appeal are whether the district court erred in denying defendant's motion for a directed verdict and a judgment notwithstanding the verdict. In considering a motion for a directed verdict, the "trial judge must view the evidence in the light most favorable to the plaintiff. * * * Only if reasonable minds could arrive at but one conclusion and that in favor of the defendant should a verdict be directed. `Where such evidence on an issue is so overwhelmingly against the plaintiff's contention as to leave no room to doubt that a fact is not what the plaintiff claims it to be and such fact is essential to plaintiff's cause of action, the Court is authorized as a matter of law to direct a verdict for the defendant.'" (Citations omitted.) Price v. Firestone Tire and Rubber Company, 321 F.2d 725, 726 (C.A.6).

"`In determining the propriety of the directed verdict for defendant, we must take that view of the evidence, and the inferences reasonably and justifiably to be drawn therefrom, most favorable to the plaintiff, and determine whether or not, under the law, a verdict might be found for the plaintiff.' * * *" Southern Railway Company v. Hutchings, 288 F.2d 837, 838 (C.A.6). See also Wallace v. Louisville and Nashville Railroad Company, 332 F.2d 97 (C.A.6).

The applicable judicial standard to determine the correctness of the denial of a directed verdict and a judgment notwithstanding the verdict is the same, since the motion for a judgment notwithstanding the verdict merely renews an earlier motion for a directed verdict. United States v. Simmons, 346 F.2d 213 (C.A.5); Wieloch v. Rogers Cartage Co., 290 F.2d 235 (C.A.7); Wright, Federal Courts § 95 at 370; 6 Moore, Federal Practice, § 59.08(5) at 3814.

Thus, the single question to be determined on this appeal is whether there is any substantial evidence to support the verdict. Admittedly no jury case was made out unless the Tennessee doctrine of last clear chance is applicable. Appellant concedes that the following part of the charge of the district judge to the jury is a correct statement of the doctrine of last clear chance under Tennessee law.

"Now there is another exception to the rule of contributory negligence which is recognized in Tennessee and which was recognized under the common law. This exception is known as the doctrine or rule of last clear chance. The rule applies where the plaintiff by his own negligence has placed himself, or herself, in a position of peril and the defendant by the exercise of ordinary care has a chance to avoid injuring him or her.

"As applied in ordinary situations, a defendant is not bound in all events to avoid injuring the negligent plaintiff. The law requires the defendant to exercise ordinary care to avoid injuring the negligent plaintiff, if he sees or discovers the plaintiff in the perilous situation in time to avoid injuring him. The rule applies only in a situation from which the plaintiff by the exercise of ordinary care cannot extricate himself or herself. The rule, restated, is that when defendant discovers plaintiff in a position of peril in which he has placed himself by his own negligence and from which he cannot extricate himself by the exercise of reasonable care, the law requires that defendant exercise ordinary care to avoid injuring or killing the plaintiff. Failure of defendant to exercise such care is negligence and, if the proximate cause of injury or death, renders defendant liable in damages.

"As applied to railroads, the rule of the last clear chance places a somewhat heavier obligation upon the railroad. In the ordinary situation, the rule comes into play only if defendant actually saw the plaintiff in peril. It is sometimes

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