Poe v. Atlantic Coast Line R. Co.
Decision Date | 05 June 1959 |
Citation | 326 S.W.2d 461,205 Tenn. 276,9 McCanless 276 |
Parties | , 205 Tenn. 276 Everett Ray POE v. ATLANTIC COAST LINE RAILROAD COMPANY and Louisville & Nashville Railroad Company, D/B/A Clinchfield Railroad Company. |
Court | Tennessee Supreme Court |
David M. Guinn, and Thomas E. Mitchell, Johnson City, for petitioner.
Cox, Epps, Powell & Weller, Johnson City, Harry N. Fortune, Erwin, for respondents.
A petition for certiorari has been heretofore granted in this case. Briefs have been filed and arguments heard and we now have the matter for disposition.
This is a railroad crossing accident wherein personal injuries and property damages were caused to the plaintiff growing out of a collision between the train of the respondents and the automobile of the petitioner which was being operated by him. The cause was submitted to the jury by the trial judge on three counts of the declaration to-wit: the common law count, and a second count for damages to the automobile, and the third count is a statutory count alleging the failure of compliance by the railroad company with the provisions of Section 65-1208, T.C.A., and Section 65-1209, T.C.A. The jury rendered judgment in favor of the plaintiff for $2,500 which was approved by the trial judge. On appeal the Court of Appeals reversed because, in that Court's opinion, there was no evidence of negligence to submit to the jury on any one of these three counts. The primary basis for the Court of Appeals reaching this conclusion is gathered from the following paragraph from their opinion. That paragraph is:
'As we see this record, the negative evidence offered to prove negligence of the defendant, or to prove the failure to observe statutory precautions, or to perform every precautionary duty required of it, is not only destroyed by the positive proof, but that it is so inconsistent with the positive proof as to make the positive proof uncontradicted.'
On the morning of May 4, 1956, plaintiff was operating his 1956 4-door Oldsmobile automobile on Sevier Street in Johnson City, Washington County, Tennessee, when he approached the railroad tracks of the defendant railroad which crossed that street, just north of its intersection with Ashe Street. The railroad crossing was marked and designated 'Railroad Crossing' and there were seven tracks crossing the street at this point including the main line. The defendant alleges that he approached this crossing, stopped, looked and listened and did not see anything and that there was a box car on one of the spur tracks to his left, that is, the direction from which the train came which hit him; that he drew on up to the main line and stopped again and did not see or hear anything and then started out and just as the car got on the track that the train hit the left front of his car and dragged it some distance down the track (a distance of 2 diesel engines and some 4 freight cars). It is alleged that he got on this track prior to the time that the train struck him and that he was an obstruction on the track. He says and the proof shows that the car was dragged down the track some 45 or 50 feet from where he was hit. The proof also shows that the car had a value of some $3,500 before the accident and only about $1,100 after the accident. The plaintiff likewise received minor injuries.
A reading of this record has convinced us that the Court of Appeals erroneously considered the evidence in this case as being negative and thus not sufficient material evidence to submit the question to the jury. A brief recap and quotation from some of this evidence will suffice. The plaintiff on direct examination testified insofar as here applicable as follows:
'When I approached that railroad crossing sign I put on my brakes and stopped there and looked both ways.'
'Well, I looked off to my right to see if there were any signals on that sign and there wasn't any crossing signals of any kind, because I was under the impression that most of these crossings * * *'.
(Objection entered which was ruled on by the Court, and then this).
'No, there wasn't any crossing signals on there whatsoever.'
He then says that this box car which was on his left was some 15 to 20 feet to his left. On page 12 of the transcript he was asked:
'
'
And then he was asked if he saw anything and he said:
And then on page 14 of the transcript he says that his left front fender was hit:
'My left front fender and wheel--I had just gotten across the--my left front fender had just gotten across the track, the first track, the nearest rail on the main line.'
'Well, my first impulse was to hit my brakes and I put my foot on my brakes and I didn't take them off, well, I didn't take them off till I got out of the car.
'
When asked if he saw that there was a headlight he said that he did not. He was asked about what happened when the engine struck him and he said:
He then says that after he was hit he looked outside and formed his judgment that the train was going from 15 to 25 miles per hour. He was asked how far the train went before it stopped after hitting him and his answer is:
'Diesel section plus four or five cars.'
There is other testimony of similar import in the record by a deputy sheriff and others who were close. Then there is testimony of some people who lived near the track that they heard one little toot and then just a few minutes afterwards they heard the crash and thought it was couplings of a car coming loose. Obviously this direct testimony of the plaintiff, regardless of what he said on cross examination, (as a matter of fact he stuck by this story pretty well) makes a question for the jury. The record is replete with a number of witnesses offered on behalf of the railroad that all signals were given, the bell rang and the whistle was blown and those things. Other witnesses say that the plaintiff ran into the side of the engine rather than the engine striking the car. This fact was testified to by two or three witnesses as to where the marks were on the engine. Another witness, not employed by the railroad, says he saw the car hit the train. These things, though, and this testimony, all is in direct conflict with the plaintiff and his witnesses. Under such a state of facts this makes a question for the jury.
As so often said, the rule in this State requires trial judges and appellate judges, in considering a motion by a defendant for a directed verdict as is here, and as was sustained by the Court of Appeals, to look to all the evidence, to take...
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