Southern Ry. Co. v. Noah

• Decision Date: 08 January 1944
• Citation: 176 S.W.2d 826,180 Tenn. 532
• Parties: SOUTHERN RY. CO. v. NOAH (two cases).
• Court: Tennessee Supreme Court

176 S.W.2d 826

180 Tenn. 532

SOUTHERN RY. CO. v. NOAH (two cases).

Supreme Court of Tennessee.

January 8, 1944

Certiorari to Circuit Court, Claiborne County; H. B. Brown, Judge.

Actions by Dovie Noah and by Luther Noah against the Southern Railway Company and another, for injuries sustained when Dovie Noah was thrown from a truck approaching a grade crossing. Verdict was directed as to defendant W. E. Harmon on the first trial. A judgment against the Southern Railway Company on the second trial was reversed by the Court of Appeals, and both parties bring certiorari.

Affirmed.

Donaldson, Montgomery & Kennerly, of Knoxville and John P. Davis, J. R. Ketron and A. G. Shumate, all of Tazewell, for plaintiffs in error.

R. L Pope and J. D. Pope, both of Knoxville, G. Howard Nevils, of Tazewell, and F. R. Whalin, of Middlesboro, for defendant in error.

GAILOR Justice.

Two cases are involved in this appeal and the parties will be designated as they appeared in the Circuit Court.

Plaintiff, Dovie Noah, sued the defendant Railway Company and obtained a judgment in the Circuit Court of Claiborne County for $1400 for personal injuries sustained as a result of the alleged negligence of the defendant. In a second suit her husband, Luther Noah, sued and recovered a judgment for $600 for medical expenses and loss of services. The defendant's motions for new trials were overruled appeals taken and the Court of Appeals has reversed both judgments and taxed plaintiffs with the costs.

This is the second time that these cases have been tried in the Circuit Court. On the first trial there was a disagreement of the jury and a mistrial entered. It seems that no wayside bill of exceptions was preserved by either party on that trial. There were originally two defendants, the Southern Railway Company and W. E. Harmon. There was, on the first trial, a directed verdict as to Harmon, but as no appeal was taken from such directed verdict, the present case was tried and judgment rendered against the Southern Railway Company only.

The plaintiff was a passenger sitting in the bed of a truck on the left side at the rear. The truck was proceeding along the highway at a speed of about 20 miles an hour, crossing or about to cross the track of defendant Railroad, when a train was seen approaching the crossing, and the plaintiff, believing that a collision was inevitable, started to stand upon and while so doing, was thrown from the truck into a ditch beside the railroad. As a result of the fall, she received the injuries for which she has brought suit.

The highway crossing where the injury occurred was a blind crossing. It was undesignated and unmarked. The truck was proceeding slowly and the occupants in the truck did not see the train until the front wheels of the truck were on the railroad tracks. The train struck neither the truck nor any of its occupants. The plaintiff gives a vivid and succinct account of how she received her injuries: 'As we approached the crossing someone said, 'Lord, there's a train,' and I raised up and looked and I couldn't see over this little corner of the bank, the train was coming and the smoke or steam came right over, and when I raised up that threw me over beyond right into a ditch. * * * I was just sitting in the corner like that; it made me face sideways until I raised up and then I was facing the train looking right direct towards it. * * * Question: You were thrown out before you got entirely up? Answer. I went out; I was raising up and it give a jerk and I went out.' (Emphasis ours.)

It is undisputed that the crossing where plaintiff's injuries were received was blind, dangerous and much traveled.

The plaintiff's declarations were filed in two counts, the first averring common-law negligence, and the second, the violation of certain statutory regulations. At the opening of this, the second trial, the plaintiffs abandoned their statutory count and the causes were tried, and are here before us, on the common-law count alone.

The facts of this case are peculiar, and of course, our decision must be based on the facts of this particular case. The plaintiff was injured when, according to her own testimony, she was thrown out of the truck when 'it gave a jerk' as she was in the act of standing up from a sitting position in the rear of the bed of the truck. The railroad train did not strike the plaintiff nor the truck in which she was riding. She was thrown out about 12 feet before the truck reached the railroad tracks. If the railroad is to be held liable, it must be so held on account of the breach by the railroad of some duty which it owed the plaintiff, and which was the proximate cause of the injuries which the plaintiff sustained. White v. Nashville, C. & St. L. R. Co., 108 Tenn. 739, 70 S.W. 1030.

The statutory count of the declaration has been abandoned, so that this case cannot fall within the scope of those decisions where a recovery is allowed on account of a breach of statutory duty, even though the breach is not causally connected with the injury. We think that it clearly appears that the proximate cause of plaintiff's injuries was the lurch of the truck, and although it does not appear whether that lurch was the result of a negligent operation of the truck by the driver, it does appear that the lurch had no causal connection, proximate or romote, with the operation of the defendant's train.

Both parties have filed petitions for certiorari, which were granted. We have heard argument, and the case is before us for disposition. Though several assignments of error have been filed, the parties agree that the sole question for our determination may be fairly stated by the following excerpt from plaintiff's brief: 'No, the basis of this suit is the failure of the Railway Company to sound, properly, its whistle or give any effective warning as it approached this dangerous and hazardous crossing, not 2000 feet away, but in such close proximity thereto as to make such warning effective and give timely notice to the public of the approach of this train around the curve, through the cut and onto this hazardous crossing.' (Emphasis ours.)

Since the statutory count of the declaration and the statutory basis of the suit have been abandoned, it must result that the warning on which plaintiffs insist is a common-law duty.

The rights and liability of the railroad company in this State in regard to accidental injuries to persons or property as they existed at common law have generally been merged into statutory regulations by which those rights and liabilities are clearly defined. Mobile & O. R. Co. v. Yandal, 37 Tenn. 294, 295; East Tennessee & G. R. Co. v. St. John, 37 Tenn. 524, 73 Am. Dec. 149.

The duties of the railroad companies to give warnings at highway crossings, whether they be hazardous and dangerous or not and whether they be open or blind crossings, are set out and defined in section 2628 et seq. of the Code of Tennessee, and that provision of the Code which is pertinent to the present inquiry is as...