Nashville, C. & St. L. Ry. v. Lovejoy

• Decision Date: 19 October 1917
• Parties: NASHVILLE, C. & ST. L. RY. v. LOVEJOY.
• Court: Tennessee Supreme Court

198 S.W. 61

138 Tenn. 492

NASHVILLE, C. & ST. L. RY. v. LOVEJOY.

Supreme Court of Tennessee.

October 19, 1917

Certiorari to Court of Civil Appeals.

Action by R. H. Lovejoy against the Nashville, Chattanooga & St Louis Railway. The judgment for plaintiff in the circuit court was reversed, and the cause remanded by the Court of Civil Appeals, and both parties bring certiorari. Judgments of the circuit court and Court of Civil Appeals reversed, and suit dismissed.

Claude Waller, of Nashville, and Smith & Hill, of Sparta, for plaintiff.

Robinson & Fancher, of Sparta, for defendant.

EVANS Special Judge.

This action was commenced in the circuit court of White county, by plaintiff, R. H. Lovejoy, against the Nashville, Chattanooga & St. Louis Railway Company, to recover damages for personal injuries. There was a judgment in the circuit court in favor of plaintiff for $8,000. The trial judge held, and accordingly charged the jury, that the railway company was required to observe the statutory precautions prescribed in section 1166, subsec. 5, of the Code, and brought forward in Shannon's Code, § 1574, subsec. 4. Upon appeal in error to the Court of Civil Appeals, the judgment was reversed, and the cause remanded for a new trial. That court held the statutory precautions had no application to the facts of this record, but remanded the case to be submitted to the jury under the principles of the common law. The case is now before us upon writs of certiorari granted both parties upon their respective petitions.

The declaration is in two counts. The first briefly alleged that defendant, within the town of Clifty, White county, Tenn with its engine wrongfully and negligently backed its cars upon and over plaintiff, severely injuring him (setting out the injuries), wherefore he sues, etc. This was a count under the above-mentioned statute, putting in issue its violation. Railroad v. Pratt, 85 Tenn. 9, 1 S.W. 618; Railroad v. Davis, 104 Tenn. 442, 58 S.W. 296. And it was so treated by the parties both in the lower court and in this court. The second count was upon the facts of the case. It set out the facts in detail, and alleged certain acts of negligence upon the part of defendant.

The plaintiff, Lovejoy, was in the employ of the Clifty Consolidated Coal Company which operated coal mines in or near the town of Clifty, in White county, a mining town of 600 or 700 inhabitants. He was run over by a caboose on one of the tracks of the railway company, his left foot seriously injured and his right leg so severely crushed that it became necessary to amputate it just above the knee.

It appears that the track upon which the injury occurred is a part of a branch line of the railway company running east from the town of Eastland, and terminating at or near the town of Clifty. Just a short distance before this line reaches the Clifty depot or station, it breaks into two separate tracks; one, known in the record as the south track running by the Clifty depot or passenger station; and the other, known as the north track, running in a direction a little north of east, a distance of about a quarter of a mile to one of the coal mines, known as mine No. 1. So that the tracks as they exist in the town of Clifty somewhat resemble a large letter Y, the two prongs of the Y being the north track and the south track respectively, and the base line of the Y extending westward in the direction of Eastland. There is a switch stand located at the point where the line separates into the north track and the south track, so that a train or engine coming from the west may, by means of this switch, enter either upon the north track, which leads to mine No. 1, or upon the south track, which runs by the Clifty depot or station. The passenger trains entering Clifty use exclusively the south track upon which the passenger depot is located. The following plat will aid in understanding the location of the tracks:

(Image Omitted)

The injury to plaintiff occurred on the north track. On this north track about 500 feet east of the switch stand are located some railroad scales, constructed by the railway company, and used for the purpose of weighing cars of coal. The track is so constructed at this point that two sets of rails pass over these scales, one set being to a large extent within the other, the respective rails being only a few inches apart. And it is so arranged that one pair of rails bear down upon the machinery of the scales and are known as the live rails, while the other pair do not bear down upon the scales and are known as the dead rails. When it is desired to weigh a carload of coal, the car is run upon the live rails and placed upon the scales. When it is desired to run a car across that portion of the track without weighing it, the dead rails are used, which do not bear down upon the machinery of the scales. An engine cannot be run over the live rails, because it would damage the scales by reason of its weight.

These scales are 38 feet long. About 83 feet west of the center of the scales on the north track is a scale switch by means of which cars going east on this track are switched either upon the dead rails or the live rails, as desired. About 83 feet east of the scales is another scale switch used for similar purposes. The point at which plaintiff was injured was at the west scale switch.

Lovejoy was employed by the coal company as general bookkeeper, and in addition to his office work, it was his duty to weigh cars of coal when the cars were loaded and ready to be shipped by the coal company, and his weights were accepted and used by the railway company. It appears that there was a mine operated by the company some distance east of the scales. The office of the company where the books were kept was south of the south track and a short distance east of the Clifty depot. As stated, the scales were on the north track, and in going from the office to the scales or from the scales to the office certain paths were used, but there was a low or marshy ground just south of the scales lying between them and the office, so that the path did not lie directly from the scales to the office. To avoid this marshy place, the route of travel led along the railroad track westwardly toward the main switch, until this low land had been passed, and thence southward to the office.

Plaintiff, Lovejoy, was walking on the north track, on his way from the scales to the office, after having weighed some cars of coal, when the caboose attached to a train of coal cars which had just been weighed. ran over and injured him. It appears that when cars loaded at the mine, east of the scales, are to be weighed, they are pulled down over this north track to a point west of the scales. The west scale switch is then turned so that the cars can be pushed back upon the pair of rails bearing upon the scales. As the cars, one by one, are placed upon the scales, they are weighed separately. After the cars have all been weighed, they are pulled westwardly again until all are past the west scale switch which is again turned.

On the occasion when the plaintiff was injured, he had just weighed six cars of coal. An engine was attached to the west end of the six cars and a caboose attached to the east end. Lovejoy had weighed the cars as it was his duty to do, and placed the weights of each respective car upon the slip bills, after which the cars had been pulled west of the scale switch and stopped.

In speaking of what occurred after the cars were weighed, plaintiff testified:

"As was the custom of myself and others that weighed coal there, I stepped out and walked up the scale and handed the bill to the trainman and walked up on the track with him and he got a little ahead of me. He was walking faster or trotting, as they do sometimes. The train pulled up above the other switch, he set that switch and ran around the end of the train, and as he got up even with the switch (scale switch) I noticed there was a brake valve at the end of the caboose leaking. I turned. * * * I may have been just a little beyond where that switch was. I noticed this leaky brake valve, and I turned in that direction. I noticed that the train was backing. At first I thought it was letting out the slack in the train, but I thought I had better get off the track, and when I went to get off I noticed my foot was hung and I tried to get it out and I couldn't. I don't know the exact distance the train was from me when I got hung, but it was something like half a car length probably, but I couldn't judge the distance because the train was rolling slowly all the time, but I worked at my foot and tried to get it out, and in order to save my life I fell backwards across the track."

Plaintiff testified that the wheels of the caboose passed over his right leg, but that the train was stopped before the adjoining car reached him. It appears that plaintiff's foot was caught in an opening or wedgeshaped space between the iron switch bar and a cross-tie, and became so firmly fastened that he could not loosen it.

At the time the coal cars were pulled off the scales, there was a passenger train standing upon the south track beside the Clifty depot, and was about ready to leave Clifty on its journey westward. When the coal cars had been pulled a sufficient distance on the north track for the caboose to clear the west scale switch, it was found that the engine had partially passed to the west of what is known as the clearance post, which was located a short distance east of the main switch stand where the north and south tracks separate from each other. It appears that if an engine on the north track extended west of this clearance post, a train on the south track traveling westward, would not clear it. The passenger...