Southern Ry. Co. v. Whaley

Decision Date15 December 1936
Citation98 S.W.2d 1061
PartiesSOUTHERN RY. CO. v. WHALEY.
CourtTennessee Supreme Court

Cates, Smith & Long, of Knoxville, for plaintiff in error.

Grimm & Tapp and C. B. Hartman, all of Knoxville, for defendant in error.

CHAMBLISS, Justice.

Whaley, as administrator, recovered a judgment of $7,500 for the death of his daughter, struck by a Southern Railway train. The Court of Appeals affirmed, after suggesting a remittitur of $2,500, which was accepted. The railway brings this petition, which has been granted and argument heard, and assigns a number of errors, among others that a verdict should have been directed in its favor on the facts; that the charge was erroneous, both because of affirmative expressions employed and also refusal of requests; and it is insisted that the errors recognized by the Court of Appeals in its opinion as prejudicial could not be cured, as was undertaken to be done, by a remittitur. Among these errors was the alleged misconduct of a juror in giving testimony, based on his own experience and observation, before the jury, tending to contradict a statement of fact made by the engineer of the train. We consider first the motion to direct a verdict.

The girl was thirteen years of age, well grown, having passed the sixth grade, and without any impairment of vision, hearing, or other faculties. She had been brought up on her father's farm, some eighteen miles from Sevierville, but at the time she was on a visit to a sister residing just north east of Knoxville, a short distance from the scene of the accident, and in full view of frequently passing trains. She had made previous visits to this sister. On the day she was injured she had been on a visit to a neighbor's which carried her along Spring Hill road, which crossed the Southern Railway main line, double tracked, and was returning in mid afternoon. It was a bright day in July. She was seen by several parties living near the crossing, as she approached the tracks, walking slowly (italicized by us for reasons hereinafter noted), and was watched by them from a distance as she approached and came upon the tracks. About the same time an automobile approached the tracks from the opposite side, meeting her. The occupants saw and heard the train and stopped their car at a safe distance from the tracks. It appears without contradiction that from a position 40 or 45 feet from the tracks, which ran in a straight line at this point, there was nothing to obstruct her view up and down the railway tracks for a distance of 1,500 or more feet. She did not stop on the first track, but slowly walked on across it, and as she stepped into the space be-between the tracks, the engineer blew two sharp blasts, but instead of halting, or stepping back, the girl sprang forward and was struck by a corner of the engine and killed.

The crossing at this point was not a designated and marked crossing, but was within the railroad regulation statute, 1932 Code, section 2628, subsection (1), relieving railroads of the giving of statutory precautionary warnings of approach. However, it is shown that the engineer blew his whistle at a point about 1,600 feet from this crossing, giving two long and two short blasts, and no violation of statutory precautions is relied on. The girl never appeared upon the track as an obstruction. The plaintiff relied on common-law negligence, the charge being that the defendants, "after discovering the peril to which plaintiff's intestate was thus exposed, negligently and heedless of impending consequences, failed to give plaintiff's intestate timely warning of the approach of said train."

It is conceded that there is no evidence of excessive speed or failure to maintain a lookout, or of defective brakes or other appliances. The sole negligence relied on, as already seen, is of omission only, limited to the alleged failure of the engineer, after observing the girl walking slowly, approaching the crossing, to give timely warning, by bell or whistle, to this pedestrian; and, it being admitted that he did blow again just before he reached the crossing, in an attempt to warn her, as before stated, this claim of negligence narrows to his alleged failure to give such final warning sooner.

That is to say, no precedent negligence appearing, the theory is that, after seeing her approaching the tracks, the engineer negligently failed to discover, discern, or realize that she was in peril, and delayed giving his warning, by these sharp blasts of his whistle, until too late. R. M. McGhee, witness for plaintiff, says that he heard the train blow for the crossing, "two loud blasts of the whistle, followed by two short blasts," which was "the regular crossing signal"; that the whistle was next sounded, two short blasts, close, "something like two rails" from the crossing (a rail being some 33 feet long). This witness says, when asked as to the time between the two blasts and the collision: "Just a very short time; I would not say the seconds or minutes." He describes observing the girl as she walked slowly along the road toward the crossing and as she went on upon the first or north track. She was between the two tracks, but "I don't think she had reached the cross ties" when the whistle sounded, and "she jumped like she was going to jump across the track and it seemed the train hit." He says that "she could not have been hit if she had jumped back the other way," instead of right in front of the train. While the train was coasting down a very slight grade, this witness, seated on his porch, 75 or 100 feet away, says he could hear it running.

This is plaintiff's leading witness and his testimony is quite apparently fairly given. We accept his account, which, with some immaterial variations, is the preponderant proof.

Meanwhile, as this girl walked toward the crossing from the north, on which side the engineer was, his engine backing, an automobile approached from the south, driven by witness Cliff. He stopped his car for the train to pass some 15 or 20 feet back. When he observed the girl approaching from the north and saw her walk on upon the tracks, conceiving that she was not aware of the coming train, he yelled and signaled to her. He does not know whether she heard him or not. "I know the train was making a lot of noise and the whistle was blowing." These were the short blasts sounded just before the collision, when the train was about 50 or 60 feet from the crossing, according to the weight of plaintiff's proof.

The Court of Appeals treated the case as "within the rules of the last clear chance doctrine," and say that "this issue depends mainly upon the testimony of the engineer." He says that he saw the automobile on the south side of the railroad and that he blew for the crossing a second time, thinking that maybe the car might take a chance to come on and that the last time "I quit blowing, I was 80 or 90 feet from the crossing." He also said that he saw the girl as she approached the track slowly, and that she was looking in the direction from which he was coming, "she looked to me like she was watching my locomotive"; that, instead of stopping, to his surprise, she moved more rapidly in an apparent effort to run across the track ahead of the locomotive. When he saw this, he gave two or three sharp blasts and jerked on his brakes, but she seemed to try to jump across the track in front of the engine and was struck as she reached the far side of the track and thrown into the ditch or bank on that side.

But the Court of Appeals found that the greater weight of the evidence was that the girl was in fact looking toward the automobile, and not toward the train, and on the motion for a directed verdict properly adopted this view, and the theory of the opinion seems to be that after the engineer saw her approaching and starting to cross the tracks, he negligently failed to blow the whistle in time to give her warning.

Considering the determinative facts that we have set forth, is there any material evidence that this engineer omitted to do what a reasonably prudent man, mindful of human life, would have done? He had blown for the crossing and was approaching it at a reasonable speed, 35 to 40 miles an hour, his train in full and unobstructed view, for 1,500 feet, of persons using the road. He observed that the car coming up from the south stopped, the occupants having quite naturally seen his train. He observed the deceased walking slowly toward the crossing and saw her come upon the northbound track, a place of clear safety. Should he have anticipated that she would wholly fail to stop, look, or listen, would fail to see or hear this train of twelve cars, making a noise heard some distance away by plaintiff's witnesses? Should it have occurred to him that this pedestrian would not stop for the train to pass, but would walk right on into collision with the train? It is a matter of common knowledge that persons walking along a street or highway, seeing an approaching passing train, continue to walk on up to a point only a few feet from the track and there stand. Is one thus acting in apparent imminent peril calling for preventive or protective action from the train crew? It is a rare and unexpected occurrence for a pedestrian, strolling along a road, to come upon a railroad track, down which in plain view a train is coming, and fail to pause and give to the train the right of way. All human experience and every reasonable presumption is against it. One has a right to assume that a person will exercise ordinary care for his own...

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