Southern Railway Company v. Miller, 14003

• Decision Date: 10 December 1960
• Docket Number: 14004.,No. 14003,14003
• Citation: 285 F.2d 202
• Parties: SOUTHERN RAILWAY COMPANY, Defendant-Appellant. v. Lloyd A. MILLER, Administrator of the Estate of Dorathia Maria Miller, Plaintiff-Appellee, SOUTHERN RAILWAY COMPANY, Defendant-Appellant. v. Guy L. HARMON, Administrator of the Estate of Pammella Nell Harmon, Plaintiff-Appellee,
• Court: U.S. Court of Appeals — Sixth Circuit

285 F.2d 202 (1960)

SOUTHERN RAILWAY COMPANY, Defendant-Appellant. v. Lloyd A. MILLER, Administrator of the Estate of Dorathia Maria Miller, Plaintiff-Appellee, SOUTHERN RAILWAY COMPANY, Defendant-Appellant. v. Guy L. HARMON, Administrator of the Estate of Pammella Nell Harmon, Plaintiff-Appellee,

Nos. 14003, 14004.

United States Court of Appeals Sixth Circuit.

December 10, 1960.

A. B. Bowman, Johnson City, Tenn., for appellant.

William S. Todd, and M. Lacy West, Kingsport, Tenn. (M. Lacy West, and Joseph O. Fuller, Kingsport, Tenn., on the brief), for appellee.

Before MARTIN, WEICK and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Appellant seeks reversal of two judgments against it, each in the amount of $22,500.00, entered upon jury verdicts in a consolidated trial of companion wrongful death actions. The cases were tried in the District Court, Northeastern Division of the Eastern District of Tennessee. Plaintiff-appellees, hereafter referred to as plaintiffs, were the administrators of the estates of their deceased daughters, Dorathia Maria Miller and Pammella Nell Harmon. On January 25, 1958, these girls, Dorathia at the age of eleven and Pammella at the age of thirteen, were killed when struck by a freight train of defendant-appellant, Southern Railway Company.

At the time in question, the girls were walking on defendant's bridge which crosses the Helston River in Sullivan County, Tennessee. Plaintiffs claimed that the operators of defendant's train failed to make due observation of the girls, and failed to take the required precautionary steps to avoid striking them after having discovered, or after they should have discovered, the girls' position of peril. The complaints, filed January 19, 1959, alleged common law causes of action, and relied also for recovery on the Tennessee Railroad Precautions Act (Section 65-1208, 65-1210 T.C.A.). Defendant denied the charges of negligence, asserting that the children, as trespassers, were guilty of negligence which was the proximate cause of their deaths; and further asserted that Chapter 130 of the Public Acts of Tennessee, effective March 16, 1959, which amended and repealed relevant sections of the Railroad Precautions Act, was applicable to the trial of the instant cases, which commenced March 20, 1959.

The District Judge submitted the cases to the jury on common law negligence and upon the provisions of the Tennessee Railroad Precautions Act as such provisions read prior to the changes effected by Chapter 130 of the Public Acts of 1959. Defendant here seeks reversal on the following grounds: first, that the mentioned Act of 1959 should have been held to apply to the trial of these cases; second, that the trial judge should have held that it was impossible for the engineer of defendant's train to stop it before striking the girls, and should have granted its motion for new trial for such reason; third, that the trial judge unwittingly committed prejudicial error in his attitude and demeanor in ruling on the taking and introduction of some photographs; fourth, that one of the jurors was guilty of prejudicial misconduct; and, fifth, that the verdicts were excessive and evidenced passion, prejudice and caprice on the part of the jury. We shall discuss these claims in the above order.

First: Claimed applicability of Chapter 130, Public Acts, 1959. Prior to the 1959 Act, the Tennessee Railroad Precautions Act (§ 65-1208 et seq., T.C.A.) required the operators of a railroad train to take various precautionary steps to avoid injury to persons in the path of such train. Failure to comply with such requirements rendered the railroad liable, irrespective of an injured person's contributory negligence, and a finding that the railroad's noncompliance was a proximate cause of the injury was not essential to its liability. The burden of proving its compliance with the statute was cast upon the railroad. The 1959 Act retained the defined precautionary steps required of the train crew, but provided that in the trial of cases involving such statutory duties, "the burden of proof, the issue of proximate cause, and the issue of contributory negligence shall be tried and be applied in the same manner and with the same effect as in the trial of other negligence actions under the common law in Tennessee." The 1959 Act directly repealed § 65-1210 whereby the burden of proving its compliance with the requirements of § 65-1208 was placed on the railroad.

The fatal accident involved here occurred on January 25, 1958. Whatever causes of action accrued to plaintiffs therefrom came into being on that date by virtue of the common law and the Railroad Precautions Act, as these laws then read. We must answer here whether the Tennessee Railroad Precautions Act (as it read when plaintiffs' decedents were killed) provided substantive rights in plaintiffs, and whether it was within the power or intention of the Tennessee Legislature, by the 1959 Act, to destroy or impair them. The defendant asserts that the 1959 Act merely altered the form of remedies for enforcement of plaintiffs' causes of action and, under familiar rules, should have been given retrospective effect so as to apply to an action tried after its enactment into law. Freeborn v. Smith, 2 Wall. 160, 17 L.Ed. 922; 11 Am. Jur. Sec. 357, pp. 1185-6; Collins v. East Tennessee, V. & G. Railroad Co., 56 Tenn. 841; Brandon v. Warmath, 1955, 198 Tenn. 38, 277 S.W.2d 408.

At all times here involved, a Tennessee Statute provided as follows:

"1-301. Repeals not retroactive. — The repeal of a statute does not affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed."

The 1959 Act effectively repealed or amended those parts of the Precautions Act relating to contributory negligence, proximate cause and burden of proof. Each of the actions here involved was a "proceeding commenced" which said Section 1-301 provides was not to be affected by repeal of a statute by virtue of which it was commenced. A reference, therefore, to Section 1-301 might be sufficient to sustain plaintiffs' claim that the 1959 Act was inapplicable to the lawsuits here involved which had been instituted and were pending prior thereto.

Other reasons, however, impel us to sustain the trial judge. We are of the opinion that the provisions of the Railroad Precautions Act as it read when the plaintiffs' decedents were killed, provided plaintiffs with substantive rights which were neither destroyed nor impaired by the 1959 Act. The Railroad Precautions Act was drastic legislation, visiting upon railroads liability unknown to the common law. Its severity, however, did not prevent its enforcement. As Judge Martin of this court said in Alabama Great Southern Railroad Co. v. Brookshire, 6 Cir., 166 F.2d 278, 281, 1 A.L.R.2d 612, "The absolutism of the statute, however, has been repeatedly recognized by the highest court of Tennessee." It is true that the delineation of the precautionary steps required of a railroad are in large measure a recitation of duties imposed by the common law. Tennessee Cent. R. R. Co. v. Dial, 16 Tenn.App. 646, 650, 65 S.W.2d 610. However, a failure to prove their performance imposed a liability on a railroad unknown to the common law. The Precautions Act did not merely fashion remedies and procedures for enforcement of existing rights, but created new and theretofore nonexistent rights and liabilities. The elimination of contributory negligence as a defense and imposing liability on a railroad for its negligence, even though not a proximate cause of injury, were not merely procedural remedies. Casting the burden of proof on the railroad to establish its compliance with the duties imposed by the Precautions Act might, if separated from the totality of the Act, be considered as purely remedial, and the lifting of such burden by the 1959 Act given retrospective effect. However, that part of the Precautions Act casting the burden of proof of compliance on the railroad (T.C. A. § 65-1210) was directly repealed by Section 3 of the 1959 Act, and such repeal was forbidden from affecting "any right which accrued, any duty imposed * * any proceeding commenced, under or by virtue of the statute repealed." T.C.A. § 1-301.

We likewise think that the Precautions Act must be considered in its entirety, and Section 65-1210 relating to burden of proof is so inextricably a part of the totality of the Precautions Act as to be an integral part of the substantive right created by the Precautions Act. Aware that in some situations burden of proof has been looked upon as relating solely to remedy, we think in the context here involved it is a part of a substantive right. Burden of proof has been so considered in cases where forum courts, state or federal, are called upon to determine whether to apply the lex fori or the lex loci in a given situation. The United States Supreme Court has so characterized burden of proof, "Under the Erie rule, presumptions (and their effects) and burden of proof are `substantive' and hence respondent was required to shoulder the burden during the instant trial." Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 927, 3 L.Ed.2d 935. Such was the holding also of the cases of Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645; Cities Service Oil Company v. Dunlap, 308 U.S. 208, 213, 60 S.Ct. 201, 84 L.Ed. 196.

Precedent and authority for holding the 1959 Act inapplicable to the trial of these cases which involved fatal accidents which occurred before its effective date, is found in the decision of the Tennessee Supreme Court in the case of East Tennessee & Georgia R. R. Co. v. St. John, 37 Tenn. 524, 73 Am.Dec. 149. In that case, a slave boy was killed by a railroad train. At the time of his death, an early Tennessee statute which imposed even more drastic liability upon railroads than the Precautions Act, as...