Stem v. Nashville Interurban Ry.

• Decision Date: 02 March 1920
• Parties: STEM v. NASHVILLE INTERURBAN RY.
• Court: Tennessee Supreme Court

221 S.W. 192

142 Tenn. 494

STEM v. NASHVILLE INTERURBAN RY.

Supreme Court of Tennessee.

March 2, 1920

Appeal from Circuit Court, Davidson County; A. G. Rutherford, Judge.

Action by George W. Stem, administrator, against the Nashville Interurban Railway. Verdict directed for defendant. On plaintiff's appeal, the case was reversed by the Court of Civil Appeals, and the case was taken to the Supreme Court. Reversed and remanded.

R. H Crockett, of Franklin, and J. M. Anderson, of Nashville, for appellant.

P. E Cox, of Franklin, and Pitts & McConnico, of Nashville, for appellee.

BACHMAN J.

On the 28th of May, 1916, Mrs. Phemye S. White was killed in a collision between an interurban car operated by the defendant railway company and an automobile in which she was an occupant, and this suit is to recover for the injury causing her death. The statement of the physical conditions immediately surrounding the accident and the contentions of the parties with reference to the cause of, or liability for the same is most fairly set out in the opinion of the Court of Civil Appeals, and on these particulars and to the extent wherein we concur it is as follows:

"The accident occurred at the junction of the Franklin turnpike and Caldwell lane. Defendant operates an interurban railway between Nashville and Franklin, which, at the point where this accident occurred, runs along the west side of the Franklin pike. Caldwell lane enters the Franklin pike at this point from the west, so that the car tracks lie across the mouth of the lane. The lane terminates at the pike, so that one coming out of the lane has to turn at right angles. The car in which Mrs. White was riding was approaching the pike from the west, and the interurban car was proceeding north from Franklin toward Nashville.

Beginning about 772 feet west from the pike, Caldwell lane is at quite an elevation, and it then descends rapidly to a point 357 feet from the pike, at which point it is about 14 feet below the level of the pike and the car tracks at the mouth of the lane, and it continues at this level for 165 feet, and then rises gradually for 215 feet, so that the last 10 feet of the rise is in the last 35 feet of the approach, making quite a steep ascent right at the pike.

There are trees and shrubbery on the south side of the lane, and there is a great deal of evidence for and against the contention that they obstructed the vision and rendered it difficult, if not impossible, for one driving through the lane toward the pike to ascertain the approach of the interurban cars from the south.

Mrs. White was riding in an automobile of Mr. J. P. Tyner, and as the guest of him and his wife. Mr. Tyner was on the right front seat, and was driving the car, his wife was at his left, Mrs. White was immediately behind him with her son on her left, and on one of the collapsible seats in between was a young son of Mr. and Mrs. Tyner.

At the time of the accident Mrs. Tyner was half turned in her seat and was conversing with Mrs. White and was pointing out to her the home of Mr. Caldwell just north of the lane, so that Mrs. White was looking in that direction and not in the direction from which the interurban car was approaching.

Plaintiff undertook to prove that Mr. Tyner was exercising reasonable care and was proceeding at a moderate speed, and that the occupants of the automobile did not see or hear the interurban car approaching, and had no opportunity to do so, until the automobile was within 20 feet of the track and the interurban was 72 or 100 feet away, and that Mr. Tyner immediately put on his brakes and stopped his car before the front wheels were on the track, and was trying to back away when the interurban car struck the front end of the automobile.

On the other hand, defendant's witnesses testified that the motorman discovered the automobile when it was 170 feet away, and at once blew his whistle and applied his air brakes and did everything possible to avert the accident, and that, if the occupants of the automobile had been in the exercise of reasonable care, they would have discovered the approach of the interurban in time to have avoided the collision.

There is a conflict in the evidence with respect to the speed of the automobile. Plaintiff's witnesses say that it was going at a moderate speed of not to exceed 10 or 15 miles an hour. Defendant's witnesses, on the contrary, assert that, when they first saw the automobile from the front platform of the interurban car, the automobile was 170 feet away, and the interurban car was going 35 or 40 miles an hour, and that the automobile not only reached the crossing first, but had come to a stop at the crossing, which would indicate that, when first seen, the automobile was going very much faster than 40 miles an hour.

Defendant's car struck the automobile with great force and swung it around and turned it over and threw Mrs. White some distance against a stone fence rendering her unconscious and inflicting injuries from which she died a few hours later. Mr. Tyner was caught under the automobile, and his wife and son and Mrs. White's son were hurled over the fence into the lawn of Mr. James E. Caldwell, which is immediately north of the lane."

As the proper determination of the rights and liabilities of the parties hereto necessarily involves the question of the application of our statutory regulation of the operation of railroad trains at crossings, it is necessary that we make the following additional statement of facts:

The Nashville Interurban Railroad is the owner of an electrically operated line of railroad, extending from Nashville through Davidson and Williamson counties to Franklin, a distance of 19.3 miles, 2.8 miles of which are within the city limits of Nashville, over which latter mileage its passenger cars are run on the tracks of the Nashville Railway & Light Company, in accordance with the city ordinances regulating the operation of street cars. From the city limits, with the exception of a distance of less than a half mile, its track is situated upon a private right of way owned by the company and is constructed in like manner as an ordinary commercial railroad, suitable for the transportation of passenger and freight cars of standard gauge. The passenger cars are of the well-known interurban type, are propelled by electric motors, and are equipped with air brakes. A compressed air whistle and a gong or bell are provided to give warning of the approach of the car when in operation. The general construction of the cars is similar to that of the ordinary electric street cars, only they are larger and heavier, weighing, empty, about 60,000 pounds. Passenger cars are run over the line of railway according to a published schedule, and outside of the city limits stops are only made at certain designated stations. In addition to passenger traffic, a regular express business is transacted over the road by the American Express Company, and both intra- and inter-state freight haulage is carried on; trains of 3 to 5 freight cars being drawn by an electric locomotive. The road connects with the Tennessee Central Railroad near Nashville, and with the Midland Tennessee Railroad at Franklin, and cars of freight are received from and delivered to these connecting roads in the ordinary course of business, which is done under the regulations of the state railroad Commission and Interstate Commerce Commission, to both of which bodies reports are duly made.

At the conclusion of the hearing in the circuit court the trial judge peremptorily instructed the jury to find in favor of the defendant, stating his reasons as follows:

"There was no duty imposed by statute on the defendant to sound its whistle, etc., upon approaching this public crossing, because it was not officially marked as required by the statute, and there is no evidence that the servants of the defendant failed to sound the whistle and do everything possible after the automobile appeared on the track.

Again, if Mrs. White had been looking at all, it would be for the jury to say whether she had exercised reasonable care, but where she is shown positively not to have been making any effort at all to see, then it is a question for the court to say that it was negligence per se. Of course, the negligence of Mr. Tyner is not to be imputed to Mrs. White, if she was free from fault; but, where she was not making any effort at all to look out and protect herself in the matter of going upon that track, it is not a case of Mr. Tyner's negligence being imputed to her, but it is a case of contributory negligence on her part.

The result is, if this case is based upon the statute, the defendant is not liable, because it was not required to sound its whistle, etc., at that place; and, on the other hand, if the case is based upon the common law, then her contributory negligence bars her recovery. The motion is therefore sustained."

It is to be inferred from this statement of the trial judge, made in sustaining the motion for peremptory instructions, that the question of common-law negligence on the part of the defendant was not passed upon, evidently for the reason that he considered the contributory negligence of the deceased a bar to any recovery.

Upon appeal ...