Tennessee Cent. R. Co. v. Vanhoy

Decision Date14 July 1920
Citation226 S.W. 225,143 Tenn. 312
PartiesTENNESSEE CENT. R. CO. ET AL. v. VANHOY.
CourtTennessee Supreme Court

Certiorari to Court of Civil Appeals.

Action by Phillip Vanhoy against the Tennessee Central Railroad Company and others. A judgment for plaintiff was affirmed on appeal to the Court of Civil Appeals, and defendants bring certiorari. Affirmed.

HALL J.

An action of damages brought by Phillip Vanhoy, as surviving husband of Ida Vanhoy, deceased, against the Tennessee Central Railroad Company, W. K. McAlister, and H. W. Stanley receivers, and N. G. Hitshew and G. W. Thauscher, as administrators of the estate of J. T. Hitshew, deceased, to recover for the alleged negligent killing of his wife on August 4, 1917, at a grade crossing of the Tennessee Central Railroad Company within the corporate limits of the town of Crossville, Tenn.

For convenience the parties will be referred to in this opinion according to their status in the court below; that is plaintiff and defendants.

A trial of the case in the court below before the court and a jury resulted in verdict and judgment against all of the defendants in favor of the plaintiff for the sum of $10,000 damages, from which judgment said defendants appealed to the Court of Civil Appeals, after their motions for a new trial had been overruled.

The hearing of the case by that court upon the appeal of the defendants resulted in an affirmance of the judgment of the trial court, and the case is now before this court on petitions of the defendants for writs of certiorari, which have been heretofore granted, and the case held for further consideration.

The accident, which resulted in the death of the plaintiff's wife, Mrs. Ida Vanhoy, grew out of a collision between the automobile in which she was riding and a passenger train of the Tennessee Central Railroad Company at a point where the public road known as the Memphis to Bristol Highway crosses the railroad track within the corporate limits of the town of Crossville. The automobile was owned and was being driven by J. T. Hitshew, and in which, at the time of the accident were six ladies, all invited guests of the said Hitshew. As a result of the collision, Mr. Hitshew and four of the ladies, including Mrs. Vanhoy, were killed, and the other two were seriously injured.

Mrs Vanhoy was a young woman about 21 years of age, and had been married to the plaintiff about 1 year at the time she was killed. At the time of the accident the automobile was being driven in a southeasterly direction from Crossville towards Dorton along the Memphis to Bristol Highway, the purpose of the trip being to take Mrs. Hedgecoth, one of the party, as far as the town of Dorton, which is located four miles east of Crossville, on her way home, she living about a mile and a helf from Dorton. Mrs. Hedgecoth's home could not be reached by an automobile from Dorton, owing to the condition of the roads. Mrs. Hedgecoth had walked to Crossville that morning to be present at the departure of a company of volunteer soldiers who had trained for several months, and were going to depart on that day to an army camp, and she intended to return to Dorton on the train, but upon the suggestion of J. T. Hitshew that he would take her in his car as far as Dorton she accepted his invitation, and thereupon Mr. Hitshew invited the other ladies to accompany them upon the trip, and it was in this way that Mrs. Vanhoy became a passenger in the Hitshew automobile. Mr. Hitshew was a friend of Mrs. Vanhoy's uncle, and was visiting at his home in Crossville at the time. Many people had assembled in Crossville on that day for the purpose of paying their respects to the departing soldiers. There was also a carnival in progress there at the same time, and these functions were the occasion of much travel by rail and on the highways and streets of the town.

At the time of the collision Mr. Hitshew and one of the ladies, Miss Dorothy Dayton, were on the front seat, and Miss Dorothy's sister, Mabel, was seated on the right front door of the automobile, facing in a northerly direction, with her back turned to the direction from which the train approached that struck the automobile. Mr. Hitshew was seated on the left side of the front seat. Mrs. Vanhoy was seated on the right side of the rear seat. A Miss Cox was seated next to her, and a Miss Hughes was seated on the left side of the rear seat, and Mrs. Hedgecoth was sitting on the laps of Miss Cox and Miss Hughes. The evidence tends to show that some laughing and talking were being indulged in by at least some of the members of the party. The top of the automobile was up. The highway approaching the grade crossing from Crossville is in a hollow, and the railroad emerges from a deep cut with steep banks directly at the crossing on the right-hand side, but the railroad at the crossing, and for 200 or more feet southwest of the crossing, is plainly visible from the highway to a person driving an automobile or other vehicle; and the highway, with the exception of some holes or scoopedout places in the track between the cross-ties at the crossing, was in good condition for driving automobiles or other vehicles over it. The bank of the cut, and the bushes and weeds growing on it, completely obstructed the view of the occupants of the automobile, including those on the front seat, preventing them from seeing the train, which was approaching from the southeast and going in the direction of Nashville, until the automobile was within 20 or 25 feet of the railroad track, and then could only be seen through the open space between the planks of the stock-gap fence, which is situated on the right-hand side of the highway only a few feet from the crossing. Mrs. Vanhoy being seated on the right side of the rear seat next to the bank of the cut, her view in looking in the direction from which the train was coming was obstructed until the automobile was within from 10 to 15 feet of the track. The automobile was being driven by Mr. Hitshew at the rate of about 15 miles per hour as it approached the crossing. He did not bring the automobile to a stop or check its speed before going upon the railroad track, and the evidence tends to show that no member of the party saw the approaching train till the automobile was within about 10 feet of the track. It appears that some member of the party, the evidence does not show who, exclaimed a moment before the collision, "Look out, there comes a train!" but the automobile was struck almost instantly after this exclamation was made. It was struck about its center, and was carried for some distance on the pilot of the locomotive.

The engineeer did not see the automobile until after the collision occurred. He being seated on the right-hand side of the locomotive, he says the nose of the locomotive obstructed his view and prevented him from seeing the automobile when it appeared upon the track. He says, however, that he was on the lookout ahead at the time of the collision.

The fireman testified that he was seated on the left-hand side of the locomotive, which was the side from which the automobile approached the crossing, and that he was also on the lookout ahead, and saw something appear on the track at the crossing in front of the locomotive, but he says he did not know what it was, and thought that it passed over the crossing in safety, and he did not know that there had been a collision until the train had run some distance northwest of the crossing.

The speed at which the train was running is estimated by the witnesses at from 35 to 50 miles per hour, and it ran about 600 feet northwest of the crossing after the collision before it was brought to a stop.

The plaintiff's original declaration was filed on June 15, 1918, and the defendants filed pleas of not guilty to the same on July 6, 1918.

On February 7, 1919, the date upon which the case was called for trial, the defendants administrators asked leave to withdraw their plea of not guilty, and to be permitted to file a plea to the jurisdiction of the court upon the ground that they were citizens of Putnam county, and could not be sued in said action in Cumberland county. This motion of the administrators was overruled by the court, and exceptions were taken.

Thereupon the defendants railroad company and receivers, over the objection of the plaintiff, were permitted by the court to withdraw their said plea of not guilty, and interpose a motion to strike from the several counts of the declaration all allegations of common-law negligence on the ground that the declaration was bad for duplicity; it charging both statutory negligence and common-law negligence in the same counts.

Thereupon the plaintiff was granted leave by the court to amend his declaration so as to transpose all averments of common-law negligence as to said defendants from the second to the third count, to which action of the court said defendants excepted.

Thereupon the administrators of J. T. Hitshew renewed their application to be permitted to file their plea to the jurisdiction of the court, and the same was again overruled. This application was merely oral, and no plea to the jurisdiction was ever tendered to the court by said administrators with either of said applications.

Subsequently, on the same day, on motion of the plaintiff, leave was granted him to file an amended declaration setting forth his cause of action, to which there was no objection upon the part of the defendants, and they were granted leave to plead to the amended declaration by filing pleas of not guilty thereto.

The first and third counts of said declaration aver common-law negligence.

The second count avers that the defendant railroad company and its receivers were operating the train,...

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