Powers v. L. & N.R. Co.

• Decision Date: 04 June 1946
• Parties: POWERS v. L. & N. R. Co.
• Court: Tennessee Supreme Court

194 S.W.2d 241

183 Tenn. 526

POWERS v. L. & N. R. Co.

Supreme Court of Tennessee.

June 4, 1946

Error to Circuit Court, Knox County; Taylor H. Cox, Judge.

Action by F. D. Powers, administrator, against the L. & N. Railroad Company for damages for death of automobile occupant who was killed in collision with train. To review the judgment of the Court of Appeals affirming the judgment of the trial court the defendant brings certiorari.

Writ denied.

GAILOR Justice.

In its petition to rehear, the railroad complains, first, that by denying the petition for certiorari without a written memorandum, this Court failed to comply with sec 9924 of the Code. This case is not 'determined' by this Court, but by the court of appeals, so that section of the Code has no application. Since passage of Chapter 100 of the Acts of 1925, practice by this Court of denying petitions for certiorari to the court of appeals without memorandum has been long established and frequently approved. Beard v Beard, 158 Tenn. 437, 14 S.W.2d 745. Railroad v McDonough,

97 Tenn. 255, 37 S.W. 15; Graves v. Illinois Cent. Railroad Co., 126 Tenn. 148, 148 S.W. 239; Southern R. Co. v. Whaley, 170 Tenn. 668, 98 S.W.2d 1061; Southern Ry. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826, is a contention equally without merit. We do not agree that the opinion of the Court of Appeals in the present case indicates any attempt to modify the rules laid down in the foregoing cases, but even if it did, our action in denying certiorari without memorandum would not indicate our approval of anything but the result reached below. Bryan v. AEtna Life Ins. Co., 174 Tenn. 602, 611, 130 S.W.2d 85; Lingner v. Lingner, 165 Tenn. 525, 529, 56 S.W.2d 749.

We think this case presents no more than factual questions of negligence and contributory negligence upon which there has been a concurrence by the jury, the trial judge and the court of appeals. No rule is more firmly established in Tennessee than that such concurrence, if supported by material evidence, is binding on this Court.

In the declaration it was alleged that defendant was guilty of negligence in failing to maintain the crossing in accord with the duty laid upon it by secs. 2657-2660 of the Code. These sections apply to all 'public road [crossings],' and impose a duty wholly separate from and independent of duties imposed at 'designated crossings' under sec. 2628 of the Code. It is, therefore, immaterial to the result whether the railroad was also guilty of neglect of its duties under sec. 2628, since we find that the verdict of the jury, so far as negligence of the railroad is concerned, is supported by abundant evidence that the railroad was guilty of negligence under secs. 2657-2660 of the Code. Tennessee Central R. Co. v. Umenstetter, 155 Tenn. 235, 291 S.W. 452; sec. 8824.

The proposition in the petition to rehear that the plaintiff's intestate was guilty of contributory negligence as a matter of law, is equally untenable. Declaration by the Court that Powers was guilty of contributory negligence as a matter of law, would only be justified if the actions or conduct of Powers, immediately prior to the accident, was made clear in the record by undisputed evidence from which all reasonable minds would be forced to conclude that such actions or conduct constituted proximate contributory negligence. Philip Carey Roofing & Mfg. Co. v. Black, 129 Tenn....