Snyder v. Missouri Pac. R. Co.
| Decision Date | 02 March 1946 |
| Citation | 192 S.W.2d 1008,183 Tenn. 471 |
| Parties | SNYDER et al. v. MISSOURI PAC. R. CO. et al. ROTH et al. v. SAME. |
| Court | Tennessee Supreme Court |
Error to Law Court, Shelby County; Floyd M. Henderson, Judge.
Death actions by Mrs. Blanche Snyder and others, representatives of the estate of C. C. Huffman, deceased, and by Mrs. Selma Mary Roth and others, representatives of the estate of Phillip N Roth, deceased, against the Missouri Pacific Railroad Company and others. The jury returned verdicts for plaintiffs, but the court directed verdicts for defendants and dismissed both actions. The Court of Appeals affirmed the judgment in the Huffman case and dismissed that action but reversed the judgment in the Roth case and remanded it for a new trial and the aggrieved parties bring certiorari.
Judgment of Court of Appeals in the Huffman case and judgment of Court of Appeals in Roth case reversed and action dismissed.
Hugh Stanton, of Memphis, I. M. Greer, of Harrisburg, Ark., and C. T. Carpenter, of Marked Tree, Ark for plaintiffs in error (plaintiffs below).
Canada, Russell & Turner, of Memphis, for defendants in error.
These two suits were brought by representatives of C. C. Huffman and Phillip N. Roth to recover damages for the deaths of the two men occasioned by a collision between an automobile in which they were riding and a train of defendant railroad company. The two cases were tried together. There was a verdict for plaintiffs for $2000 in Huffman's case and a verdict for plaintiffs for $7540 in Roth's case. Upon motion for a new trial, the circuit judge concluded that he should have directed a verdict for the defendants in each case and accordingly dismissed both suits.
The court of appeals affirmed the judgment in the Huffman case and dismissed that suit. That court, however, reversed the judgment in Roth's case and remanded it for a new trial. Petitions for certiorari were filed by the aggrieved parties, both petitions were granted, and the case has been fully presented to this Court.
The accident occurred at the crossing of the railroad track and a public highway in Harrisburg, Arkansas, a village of about 1100 population. The declarations filed in these cases were largely based on alleged violations by the railroad company of certain statutes of the State of Arkansas; Pope's Digest, § 11135, requiring a bell or whistle to be rung or blown at a distance of at least 80 rods (1320 feet) as a train approached a road or street crossing and to be kept ringing or blowing until the train crossed the road or street; Pope's Digest, § 11144, providing for a lookout, and Pope's Digest, § 11153, as to comparative negligence, which last named statute we shall refer to later.
It is conceded that, as they are construed by the Arkansas court, a violation of the statutes does not impose absolute liability on a railroad company but to support an action the violation of the statutes must be the proximate cause of the accident.
The accident here involved occurred in the town of Harrisburg, where Jackson Avenue crosses the railroad track. The deceased men were driving in a one-seated car. The case has been tried on the theory that Huffman was driving the car and Roth sitting by his side. At the place of the collision the railroad track runs north and south and the car was approaching from the east, traveling west.
The train which struck these men was approaching from the north. The north side of Jackson Avenue east of the crossing is built up by a number of closely placed houses. The west side of the house nearest the railroad track is 76 feet from the center of that track. Between this house and the track are three trees which to some extent may be said to obstruct the view toward the north. The tree nearest to the track is 55 feet distant. Along this east side of the track there is a drainage ditch which is crossed by a bridge over which Jackson Avenue passes. The east edge of the bridge is 56 feet from the track and the west edge is 28 feet from the track.
The railroad track at this point is level and straight for a mile and a half or more north of the Jackson Avenue crossing. East of the crossing, some 155 feet, is a highway disk sign, called a flasher signal, to give warning of the proximity of the railroad. On nearing this crossing from the east, at a distance of 55 or 56 feet, there is practically a clear view of the track toward the north.
The car in which the deceased men were riding was struck by the engine of a heavily loaded freight train of some 40 cars, traveling at a speed of 48 or 50 miles an hour. The accident occurred about daybreak on a July morning but there is proof that the headlight of this engine was seen by men in the neighborhood of the crossing when the train was yet two miles distant. Evidence indicates that the automobile was traveling at the rate of about 25 miles an hour as it approached the crossing. Both occupants of the car were dead when the train was stopped and the trainmen went back to investigate the accident.
These two men lived at Weiner, Arkansas, fourteen miles from Harrisburg. Roth was a mechanic who operated a repair shop and Huffman worked for him. The court of appeals finds it to be a fair inference from the proof that they were both familiar with the crossing in question. They were last seen alive about four a. m. on the morning of the accident at a roadhouse about a mile east of the crossing. Beer bottles, some empty and some full, were found in the car immediately after the collision. Huffman was seen in a barber shop at nine o'clock the night before and appeared to be under the influence of liquor to some extent. The automobile in question belonged to Roth.
The foregoing summary of the facts is largely a repetition of that made by the court of appeals, which is not challenged in any particular that we regard as material in disposing of this case.
We do not detail the facts further since, for the purposes of this opinion, we grant that there was sufficient evidence to take the cases to the jury on the question of the railroad company's guilt of proximate negligence. The question, however, is close. The proof is that the warning signals were not begun by the railroad company's employees when the train was 1320 feet from the crossing but were given at a less distance. The court of appeals was of opinion that this failure to give the statutory warning, the speed of the train, and the nature of this crossing--that these things combined to make a case in which it should be left for the jury to say whether the railroad company was guilty of proximate negligence.
There remains to be considered, however, the question of the contributory negligence of Huffman and Roth.
Section 11153 of Pope's Digest, heretofore mentioned, is as follows:
'In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed if of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence.'
The determinative question, then, is whether or not the negligence of the persons killed is of less degree than the negligence of the employees of the railroad company. If the negligence of the persons killed equaled or exceeded that of the employees of the railroad company, there could be no recovery in these cases. That seems well settled under the decisions of the Arkansas court.
The difficulty we have is in determining under the Arkansas decisions whether the quantum or degree of the negligence of the dead men herein should be determined by the court or left to the jury.
As repeatedly stated in the decisions of our sister state, no two cases of this nature present exactly the same state of facts. But we find a number of Arkansas cases in which the facts are quite similar to those here appearing and in some of these cases it was ruled that the negligence of the parties was to be compared by the court and in some that it was to be compared by the jury. Each line of cases is pressed upon our attention by the parties ...
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