Roper v. Memphis St. Ry. Co.

• Court: Tennessee Supreme Court
• Writing for the Court: Hughes
• Citation: Roper v. Memphis St. Ry. Co., 188 S.W. 588 (Tenn. 1916)
• Decision Date: 02 October 1916
• Parties: ROPER v. MEMPHIS ST. RY. CO. et al.

Page 588

188 S.W. 588

ROPER v. MEMPHIS ST. RY. CO. et al.

Supreme Court of Tennessee.

October 2, 1916.

Certiorari to Court of Civil Appeals.

Action by Idella A. Roper against the Memphis Street Railway Company and the Illinois Central Railroad Company. The Court of Civil Appeals affirmed a judgment for plaintiff against the Street Railway Company, and reversed and remanded a judgment on a directed verdict for the Illinois Central Railroad Company, and each of the defendants brings certiorari. Affirmed.

Samuel P. Walker, of Memphis, for plaintiff in error Memphis St. Ry. Co. Sivley & Evans and Burch & Minor, all of Memphis, for plaintiff in error Illinois Cent. R. Co. Randolph & Randolph, of Memphis, for defendant in error.

HUGHES, Special Judge.

This case grows out of a collision between a freight train of the Illinois Central Railroad Company and cars of the Memphis Street Railway Company. R. A. Roper was a passenger upon the street cars, and was killed in the collision. His widow, the plaintiff, Idella A. Roper, brought this action against both companies to recover damages. The general facts are identical with the facts in the Betty Hudson Case, 188 S. W. 589, just decided, and will not be repeated.

The trial court, at the close of the plaintiff's evidence, directed a verdict in favor of the Illinois Central Railroad Company. The trial proceeded as to the street railway, and there was a verdict and judgment against it for $18,500. The Court of Civil Appeals affirmed the judgment as to the street railway company, but reversed and remanded as to the Illinois Central Railroad Company. Each party to the cause comes to this court by certiorari.

1. The question as to whether or not the Illinois Central Railroad Company was required by the statute to stop its train at this crossing has been dealt with in the case of Illinois Central Railroad Company v. Betty Hudson, decided this day, and the decision there controls this case. The Illinois Central was not required by statute to stop its train at this crossing.

2. By the third count of the declaration, the Illinois Central Railroad Company was charged with negligence at common law. It was alleged, and there was evidence tending to prove, that this crossing was in constant use, by street cars passing at intervals of a few moments; that a train of the same company was then passing in an opposite direction, and the smoke and dust thereof to some extent obstructed the vision; and that a heavy train of 90 cars was driven over this crossing at a very high rate of speed, in the dusk of the evening, without sufficient warning.

The court is unable to say that a jury would not have been justified in finding these facts to be true, and in drawing the inference of negligence therefrom. Such being the state of this record, we hold it was error to direct a verdict for the defendant railroad company. It was for the jury to say, under all the circumstances, whether or not the Illinois Central Railroad Company conformed to that standard of care which the law exacts of every one.

There is no error, therefore, in the judgment of the Court of Civil Appeals, reversing as to the Illinois Central, though in the opinion of the majority of this court a wrong reason was given for reversal.

3. As the action of the circuit court in directing a verdict is held to be erroneous because a case of common-law negligence sufficient to go to the jury was made, we do not pass upon the applicability of the statute requiring the observance of certain precautions when obstructions appear upon the track. The facts are not clear as to whether an obstruction did in fact appear upon the track, under such circumstances as to create liability for nonobservance of those precautions. The conductor of the street car appeared upon the track, but he was not struck....