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

• Decision Date: 31 March 1928
• Citation: 15 S.W.2d 1,158 Tenn. 407
• Parties: NASHVILLE, C. & ST. L. RY. v. WHITE (four cases).
• Court: Tennessee Supreme Court

15 S.W.2d 1

158 Tenn. 407

NASHVILLE, C. & ST. L. RY. v. WHITE (four cases).

Supreme Court of Tennessee.

March 31, 1928

Appeal from Circuit Court, Shelby County; H. W. Laughlin, Judge.

Actions by R. D. White, administrator of W. B. White, by Elizabeth White, by her next friend, R. D. White, by Lizzie J. White and by R. D. White, individually, against the Nashville Chattanooga & St. Louis Railway. Judgments for plaintiffs and defendant appeals. Judgments affirmed, but as to judgment in favor of R. D. White, as administrator, affirmance made conditional on remittitur.

Millsaps Fitzhugh and G. T. Fitzhugh, both of Memphis, for appellant.

Julian Wilson, W. P. Armstrong, and Elias Gates, all of Memphis, and Wm. M. Colmer, of Pascagoula, Miss., for appellees.

COOK J.

These causes were heard together in the trial court and come here in one record. We designate the parties as in the trial court.

The Ford touring car occupied by plaintiffs and driven by W. B. White was struck by defendant's train on the Poplar street crossing in Memphis on the night of December 1, 1925. W. B. White was killed and the other occupants of the car injured. Actions were commenced and in each case a declaration of two counts was filed, charging for cause of action (1) common-law negligence; (2) failure to observe the precautions required by subsections 2 and 3, § 1574, of Shannon's Code.

The jury found for R. D. White, administrator of W. B. White, and for R. D. White, individually, under the first counts of their declaration and against them upon the second, and for the other plaintiffs upon both counts. The trial judge approved the several verdicts and upon appeal errors are assigned by the defendant. Some of the assignments of error present questions common to all the cases, and these will be disposed of at the outset.

One act of negligence, in connection with others, charged in the first count of the several declarations, was the failure of the defendant to have a flagman stationed at the crossing to warn persons traveling the highway of approaching trains as required by an ordinance of the city of Memphis. This ordinance reads as follows:

"All railroads whose trains of cars are driven by steam engines, within the limits of this city, shall provide flagmen for each street such trains may cross; these flagmen shall be kept constantly on duty at each street, when such train crosses, and until the engine has crossed such street, waving a flag in day time, and a red lighted lamp at night to give warning to all of the approaching train."

Defendant met this charge of negligence by a special plea averring that it erected and maintained at the Poplar street crossing an electric signal device to warn persons using the street of the approach of trains, and that such device was a better and more efficient means of protection against accidents at the crossing than a watchman with a flag or lantern as required by the ordinance, and that the ordinance requiring the watchman was void in contravention of the laws of the state and of the commerce clause of the Federal Constitution and the Fourteenth Amendment (Const. U.S. art. 1, § 8, cl. 3, and Amend. 14, § 1).

In support of this special plea evidence was offered and the trial judge admitted testimony that the electric signal maintained at the crossing was designed according to the latest standard of the art, and was kept in perfect condition. He also admitted evidence to show its utility and service for the purpose designed, and along with this evidence to show what a watchman with a flag or lantern was required to do or could do to warn travelers, and also the relative cost of the two modes of guarding travelers on the street against danger from contact with trains on the crossing. Witnesses were then called to testify from their experience and observation that the electric signal maintained at the crossing was the best known means of protecting travelers on highways from collisions with trains on road crossings, and was superior to a flagman as a safeguard against accident.

The ordinance having been challenged as obsolete and unreasonable under changed conditions, evidence showing its relation to the public safety at street crossing was admissible, and such evidence was received by the trial judge. After presenting those facts, defendant could not go further and substitute the conclusion of the witnesses upon the subject of inquiry for the conclusion of the court. The inference to be drawn from a consideration of the two modes of warning travelers of approaching trains was a judicial function and the witnesses could not be called to intrude their conclusions into the province of the court or jury (Bruce v. Beall, 99 Tenn. 303, 41 S.W. 445; Cumberland Telephone Co. v. Peacher Mill Co., 129 Tenn. 374, 164 S.W. 1145, L. R. A. 1915A, 1045), by declaring the electric signal a more efficient means of preventing accidents at grade crossings than the watchman, which the ordinance required to be on guard when trains were approaching. Whether the ordinance was a reasonable police measure as applied to crossings, or whether reasonable administration called for its application to the particular crossing, were questions for the court to determine from the face of the ordinance itself, and from applicable facts and circumstances. People v. Detroit United Railway, 134 Mich. 682, 97 N.W. 36, 63 L. R. A. 746, 104 Am. St. Rep. 626.

The city was given power by the Legislature to make the regulation, and it could not be annulled by the courts, unless plainly unreasonable, or unless the situation and circumstances arising from lapse of time and changed conditions render it obsolete and unreasonable. In determining the reasonableness of the ordinance and its application, every presumption favorable to its validity exists. 43 C.J. par. 323, page 310, 19 R. C. L. § 113, p. 808.

It must be presumed that the municipal authorities were familiar with the local situation, knew the conditions at grade crossings in the city of Memphis, and that the application of the ordinance at such crossings was necessary for the protection of life and property. Therefore, to authorize judicial annulment of the ordinance, or a setting aside of legislative discretion as to its use at the particular crossing, its unreasonableness, or want of necessity, as a police regulation, must be clear, manifest, and undoubted, Hines v. Partridge, 144 Tenn. 231, 231 S.W. 16.

As said in Hartman v. City of Chicago, 282 Ill. 511, 118 N.E. 731, the court will not hold an ordinance void as unreasonable, if there is room for a fair difference of opinion as to whether or not it is reasonable.

It appears that, approaching the tracks of the Nashville, Chattanooga & St. Louis Railway from the west, Poplar street first crosses the Union Railway tracks, beyond these at 350 feet the Illinois Central Railroad tracks, and then ascending a slight grade it reaches the main track and two side tracks of defendant railroad at 410 feet. Poplar street was an arterial highway and witnesses testify that throughout the day and until near midnight cars pass at an average of one a minute over defendant's crossing. Instead of having a flagman at the crossing when trains approach to warn persons using the highway, defendant installed as a substitute the electric signal consisting of bells and red lights, elevated 15 feet from the level of the street.

It is a reasonable assumption that the flagman required by the city ordinance would stand on or near the ground in a position where he could be easily seen, and, if necessary, confront persons about to heedlessly cross the railroad tracks in front of a near approaching train.

The distinction between the two modes of warning against danger is made apparent by the proof, and the court must concede to the legislative department of the city the right to express its judgment and discretion in providing the means of protection most conducive to public safety, especially since the evidence before us does not conclusively establish the fact that the ordinance is unreasonable.

If there is controversy that produces confusion or doubt as to whether or not an ordinance is reasonable, the doubt must be resolved in favor of the validity of the ordinance. The lawmaking body of the city was the sole judge of the wisdom, expediency, or necessity for the ordinance. With the legislative department of the city lay the power to regulate, not with the courts, and the power of the court is strictly limited to the determination of whether or not the regulation was unreasonable. 12 C.J. par. 443, p. 933.

The mere fact that it would cost the defendant more to have a watchman at the crossing when trains were approaching to warn persons on the highway than to maintain the electric signal is not sufficient to render the ordinance void as a taking of property without due process, nor cause a burden upon or an interference with interstate commerce. City of Acworth v W. & A. Railroad Co., 159 Ga. 610, 126 S.E. 455, cited by defendant to sustain its proposition that the ordinance is void because unreasonable, recognizes the rule that, if the public safety required a flagman at the crossing, the fact that more expense is imposed by that requirement than by the method relied on by defendant would not render the ordinance violative of the commerce and due process clauses (article 1, § 8,...