Southern Ry. Co. v. Maples
| Decision Date | 07 December 1956 |
| Citation | 201 Tenn. 85,296 S.W.2d 870,5 McCanless 85 |
| Parties | SOUTHERN RAILWAY COMPANY v. J. M. MAPLES. 5 McCanless 85, 201 Tenn. 85, 296 S.W.2d 870 |
| Court | Tennessee Supreme Court |
Simmonds, Bowman & Herndon, Johnson City, for plaintiff in error.
Fred L. Myers, Newport, Hodges & Doughty, Knoxville, for defendant in error.
J. M. Maples brought his suit to recover damages suffered as the result of his truck, loaded with cattle and hogs, being struck by an east-bound freight train of the Southern Railway. The jury returned a verdict for the plaintiff and judgment was entered accordingly.
The defendant appealed and assigned errors in the Court of Appeals. The judgment of the lower court was affirmed. We now have the case on the defendant's petition for certiorari.
The plaintiff's declaration contained three counts: (1) that the defendant wrongfully and negligently maintained the crossing in question, the same being defective and in a dangerous condition, in that there were numerous depressions and holes of considerable depth in the surface and bed of the crossing between the rails of the track, making it difficult for motor vehicles to cross in safety. It is alleged that as a result of the aforesaid defective condition of the crossing his truck 'stalled' and that the freight train of the defendant, without warning by sounding the bell or whistle, negligently ran into the truck to his damage, etc.; (2) that the defendant violated the statutes of the State requiring certain precautions to be observed, (a) that on approaching a crossing the bell or whistle shall be sounded at a distance of one-fourth of a mile from the crossing at short intervals, (b) that the bell or whistle be sounded at short intervals when approaching or leaving a city or town, (c) that every railroad shall keep the engineer, fireman or some other person on the lookout ahead, etc.; (3) that the defendant violated an ordinance of the City of Newport regulating the speed of trains within its boundaries, the same being copied into and made a part of the declaration.
At the beginning of the trial the defendant moved the court to strike from the declaration the allegation that the defendant wrongfully and negligently maintained the crossing in question, the grounds of said motion being that said crossing was a part of the streets of Newport, and the duty was upon the city and not upon the railway company to maintain said crossing. This motion was overruled.
At the close of the plaintiff's evidence, and all the evidence, the defendant moved the court for a directed verdict in its favor upon each and every count of the declaration. This motion was overruled.
The action of the trial court in overruling these who motions was assigned as error in the motion for a new trial, and also were made the basis of an assignment of error in the Court of Appeals. These assignments being overruled they are assigned as error in the petition for certiorari.
The factual issues, as to the alleged negligence of the defendant in the operation of its freight train as it approached this crossing, as well as the alleged contributory negligence of the plaintiff in not looking and listening for the train before going upon the crossing, were decided by the jury against the contentions of the defendant. The Court of Appeals discussed the evidence relating to these issues and held that there was material evidence to support the plaintiff's contention. We are constrained to agree with the findings and conclusions of the court.
The determinative issue in the case is whether it was the duty of the defendant or the City of Newport to maintain the crossing where this accident is shown to have occurred.
The plaintiff testified that he approached the crossing from the north on McMahan Avenue at about 9:00 o'clock p. m. An overhead traffic light controlled traffic at the intersection of McMahan Avenue and Main Street. But it does not appear that this traffic light controlled the operation of vehicles at this crossing. He further testified that he 'satisfied' himself before driving on the crossing that no train was approaching. As to the condition of the crossing he gave the following testimony:
"Well, I drove on the track and it was awful rough on the crossing and one particular big hole just as I started to cross the last railroad crossing and my front wheel, left front, wheel, dropped off in this hole and it caused the truck to chug, just like that, it just stopped, so I worked there a little while trying to get it started, to get it to move on, I wasn't thinking about a train and I heard the train blowing and I looked up and there it was right on me, you might say.'
'He estimated the depth of the largest hole in the crossing as four or five inches and the speed of the train at 60 miles per hour and testified that he stayed in the truck on the crossing 'about who minutes' before jumping out.'
The foregoing testimony is apparently contradicted by a written statement which the plaintiff signed after the accident. It is urged upon us that it destroys the probative value of the plaintiff's entire testimony. But this issue has been decided adversely to the defendant's contention. We agree with the Court of Appeals that the contradiction was an issue for the jury as to the weight to be given the plaintiff's testimony.
Coming now to what we consider the determinative issue, as heretofore stated; whose duty was it to maintain this crossing, the defendant or the City of Newport?
In approaching the consideration of this question the Court of Appeals (opinion by McAmis, P. J.) says:
...
To continue reading
Request your trial
-
Mills v. Reynolds
...[83 N.M. 741], 497 P.2d 743; Smith v. United Properties, Inc., 2 Ohio St.2d 310, 209 N.E.2d 142, 144; and Southern Railway Company v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 783 "The general rule seems to be that where there is no expressed legislative mandate to the contrary, a co-employee o......
-
Baggett v. Louisville & N.R. Co.
...of the city of Brownsville, does not release the defendant from its duty to keep that crossing in proper repair. Southern Ry. Co. v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 873. Counsel for defendant contend that all of plaintiffs' testimony is purely negative in character and that, in the fa......
-
Markle v. Williamson
...231, 233, aff'd 497 P.2d 743; Smith v. United Properties, Inc., 2 Ohio St.2d 310, 209 N.E.2d 142, 144; and Southern Railway Company v. Maples, 201 Tenn. 85, 296 S.W.2d 870, 873. We find nothing in either the 1914 constitutional amendment or in §§ 27-54, 27-50 and 27-78 which expressly says ......
-
Rush v. Great American Ins. Co.
...rights of action upon women but merely removed their common law disabilities as therein set out. In Southern Railway Co. v. Maples, 201 Tenn. 85, 91, 296 S.W.2d 870, 873 (1956), this Court held '* * * it is settled law in this State that rules of the common law are not repealed by implicati......