Southern Ry. Co. v. Simpson

• Decision Date: 22 June 1904
• Docket Number: 1,292.
• Citation: 131 F. 705
• Parties: SOUTHERN RY. CO. v. SIMPSON.
• Court: U.S. Court of Appeals — Sixth Circuit

131 F. 705

SOUTHERN RY. CO. v. SIMPSON.

No. 1,292.

United States Court of Appeals, Sixth Circuit.

June 22, 1904

The following is the opinion of Clark, District Judge, in the court below, on motion for new trial:

It is not deemed necessary to go over the facts of this case in detail. It will be sufficient to say that I have no doubt, on the facts of this case, that the plaintiff was guilty in law of contributory negligence. The doctrine which exempts him from imputed negligence of the hack driver is not to be understood as exonerating him from the consequences of his own personal negligence, and a man of full years and intelligent judgment is not permitted to get in the conveyance of another person, and approach and attempt to go over a dangerous crossing like this, without saying one word or doing one thing for a dangerous crossing like this without saying one word or doing one thing for the safety of himself. It is in his power either to suggest to the driver of the conveyance to stop, or to look, or to listen, or to take some other precaution reasonably suggested by the dangerous situation. If the driver should fail to do so, the passenger has the right to insist that the conveyance shall be stopped, and that the passenger be allowed to get out and discharge the duty of reasonable care for the protection of his own life, and it would be a startling announcement to say that the fact that imputed negligence is not recognized would, in its consequences, authorize a man to omit any precaution whatever to take care of himself. The decisions of the state Supreme Court, as I read and understand them (though the point is not free from doubt), so construe the statute of the state as to render the railroad company absolutely liable for an accident which occurs while a train is being moved by an engine coupled to that train with the tender in front, or when the engine is running backward. The Supreme Court seems not to have thought or considered whether, indeed, in many cases, the duty required by the statute might not be better discharged in this way than by having the engine headed forward. It would be difficult to find any substantial reason on which to base such a decision but nevertheless it seems to be the established rule of that court, and such ruling is binding on this court. This being so, the right to recover could not be questioned, and it was the duty of the jury to assess the damages. The damages allowed should have been reduced by the plaintiff's contributory negligence.

There was one weak point in respect of the evidence introduced by the plaintiff, and that was the omission to sustain the plaintiff's own testimony by the surgeon or physician who had previously had charge of his surgical difficulties. It is not satisfactory, in fixing a serious responsibility on the defendant, to do so on unsupported testimony of the plaintiff himself, who is without medical education or training, and a very interested party, it is needless to say. There is no doubt that whatever is in the plaintiff's case is the mere aggravation of previously existing injuries, and it is very doubtful if he has really suffered anything new, as distinguished from the mere aggravation of old injuries. I would have been much better satisfied with a verdict of $2,000 to $2,500 in this case, and, as the jury should have reduced the amount by contributory negligence, I think the verdict is excessive, and that the jury did not make such reduction. Conceding to the jury, however, the latitude which properly belongs to their discretion, I have concluded that the verdict may stand for the sum of $3,500, and that the plaintiff must agree to remit $1,000 of the recovery, or otherwise the verdict will be set aside and a new trial awarded. If the plaintiff shall voluntarily remit $1,000 of the damages, the motion for a new trial will be overruled. The plaintiff is allowed 10 days within which to signify to the clerk the course intended to be taken in this regard. If there is error in my reading and understanding of the Tennessee cases in relation to the statute, this is readily subject to review by the Circuit Court of Appeals, and the question is one which it may be very desirable and of practical importance to have reviewed.

Ordered accordingly.

Jourolmon Welcker & Hudson, for plaintiff in error.

X. Z Hicks, D. A. Wood, and Lucky, Sanford & Fowler, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge.

The plaintiff below sustained an injury by collision with a railway engine while crossing the railway track at a road crossing. Upon the conclusion of all the evidence the court instructed the jury to return a verdict for the plaintiff, and submitted to them the question of amount of damages only. This instruction was predicated upon an interpretation of a provision of the Tennessee Code requiring railroad companies to exercise certain precautions in the operation of their trains to prevent collision with persons or objects on the track. That requirement is in these words:

'Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employed to s top the train and prevent an accident.'

'Every railroad company that fails to observe these precautions, or cause them to be observed by its agents and servants shall be responsible for all damages to persons or property occasioned by, or resulting from, and accident or collision that may occur.'

'No railroad company that observes, or causes to be observed these precautions shall be responsible for any damage done to person or property on its road. The proof that it has observed said precautions shall be upon the company.'

Shannon's Code Tenn. Secs. 1574-1576.

The engine at the time of the collision was being operated backwards, the tender being in front. The court denied a request by the railroad company to instruct the jury as follows:

'If the engineer was actually upon the lookout ahead of his engine, and saw the vehicle in which plaintiff was riding as soon as it could have been seen as it approached and entered upon the railroad crossing, and immediately blew the alarm whistle, put down the brakes, and used every possible means to stop the train and prevent the accident, then plaintiff cannot recover, notwithstanding the engine was at the time being operated backwards, because this would be a full compliance with the Tennessee statute.'

Touching the meaning of section 1574, Shannon's Code Tenn., set out above, District Judge Clark said to the jury:

'The statute does not, according to any just import of the language, require that the engine and tender shall be run headforemost, or that it shall not be run with the tender in front, as was being done in this case; and as an original proposition it is difficult to find any ground upon which to put an interpretation on the statute which would make it mean that it prohibits the railroad company from running its engine with the tender in front, if it chooses to do so, or that it requires any more than, if the engine is so run, that some one shall be kept on the lookout ahead, and be in a position to see ahead.'

The learned judge, however, deemed himself precluded from the right to exercise an independent judgment as to the meaning of the statute, because he was under obligation to follow the interpretation of the statute by the Supreme Court of Tennessee in the case of Railroad v. Dies, 98 Tenn. 655, 41 S.W. 860, and accordingly instructed the jury that the running of an engine backwards was a violation of the statute, and the company liable for any collision, without regard to whether the 'engineer was in a position to see, and did see, and did comply with all the requirements of the statute.'

Neither the case of Railroad v. Dies, nor any other Tennessee case, has ever involved the precise question presented by the instruction denied, or required the Tennessee court to decide that the statute was violated whenever an engine was run backwards, without regard to the circumstances. Confessedly the statute does not in terms require the engine to run either backwards or forwards. A literal compliance with the statute would not under all circumstances be a compliance with its requirements. Thus the statute prescribes, among other things, that some person upon the locomotive be at the rear of the train, or in the middle thereof, the spirit of the statute would not be obeyed, although some person upon the locomotive so situated should be always upon the lookout ahead. In such a situation the lookout upon the locomotive could not be upon the lookout ahead of the train, and the plain purpose of the statute would be evaded. Upon this consideration the Tennessee court held that the statute was not complied with by the operation of a train through the streets of a city by an engine in the rear. Railway Co. v. Wilson, 90 Tenn. 271, 16 S.W. 613, 13 L.R.A. 364, 25 Am.St.Rep. 693.

Neither does the statute in terms require an engine to be equipped with a headlight. But the effectiveness of a lookout would be practically destroyed by the neglect of a company to employ...