Tennessee Cent. Ry. Co. v. Dial

• Decision Date: 27 May 1933
• Citation: 65 S.W.2d 610
• Parties: TENNESSEE CENT. RY. CO. v. DIAL.
• Court: Tennessee Supreme Court

65 S.W.2d 610

TENNESSEE CENT. RY. CO. v. DIAL.

Court of Appeals of Tennessee, Middle Section.

May 27, 1933.

Certiorari Denied by Supreme Court December 15, 1933.

Appeal in Error from Circuit Court, Fentress County; H. B. Brown, Judge.

Action by Lula Jane Dial, for herself as surviving widow and for the minor child of Thomas Dial, deceased, against the Tennessee Central Railway Company. Judgment for plaintiff, and defendant appeals in error.

Reversed, and action dismissed.

C. J. Cullom, of Livingston, and Walter Stokes, of Nashville, for plaintiff in error.

Ward R. Case and W. A. Garrett, both of Jamestown, for defendant in error.

CROWNOVER, Judge.

This action was brought by Lula Jane Dial for herself, as surviving widow, and for the minor child of Thomas Dial, deceased, to recover damages sustained by them by reason of his death alleged to have been caused by the negligence of defendant in backing freight cars on and upon a side track without lights or lookout on the rear of said cars and without giving a warning signal, which freight cars ran over the deceased while he was on said track.

The declaration contained three counts. The first count averred that, while deceased was crossing, or on, one of defendant's side tracks at Highland Junction, in Fentress county, just below a car loaded with slate, placed on said track, the railroad company caused several cars loaded with coal to be moved onto said side track and shoved against the slate car, thereby causing said slate car to be pushed against and over the deceased, cutting off his head and killing him; that defendant was negligent in failing and neglecting to ring the bell or sound a gong or blow the whistle, as it was its duty to do under the law, and in failing and neglecting to place a light on said slate car at the end, and in failing and neglecting to see that the track was clear before proceeding to move said slate car over said track with the backing engine.

The second count averred that the deceased was on defendant's track at a place which the public had been permitted to use as a public crossing for more than twenty years, and that defendant, in switching, pushed one of its loaded slate or coal cars over deceased and killed him; that defendant negligently failed to sound any alarm or have any light on the rear end of said slate car or to make any effort to observe any obstruction on said track.

The third count averred the violation of subsection 4 of section 1574 of Shannon's Code (new Code, § 2628, subsec. 4), and failure to observe the statutory precautions when anything appeared as an obstruction on the track.

Defendant pleaded not guilty.

The case was tried to the judge and a jury. At the close of plaintiff's evidence and again at the conclusion of all the evidence, the defendant moved the court for peremptory instructions, which motions were overruled, to which defendant excepted. The jury returned a verdict of $10,000 in favor of the plaintiff.

Motion for a new trial having been overruled, defendant appealed in error to this court, and has assigned errors, which, when summarized, raise the following propositions:

(1) Defendant is not liable for failure to observe the statutory precautions, because this was a switching operation in defendant's railroad yards.

(2) Plaintiff's cause of action, as averred in her declaration, is based on failure to observe the statutory precautions; therefore she cannot recover on proof of common-law negligence.

(3) There was no evidence to support the verdict, and the court erred in overruling defendant's motions for peremptory instructions.

(4) Defendant owed no duty to the deceased, as he was a trespasser, except not to willfully or wantonly injure him.

(5) The court erred in refusing to exclude the testimony of witnesses to the effect that the cut where the car of slate was standing on the side track had been used as a public passway, as the public had no right to convert this portion of the track into a public passway, and it was error for the court to permit them to so testify over the objection of the defendant.

(6) The court erred in charging the jury as follows:

"If you find for the plaintiff you must go further and fix such an amount as in your judgment will compensate the wife of this man — reasonably compensate her for the death of her husband. In fixing this amount you will look to the age of this man — his earning capacity and character of citizenship."

(7) The verdict is so excessive as to indicate passion, prejudice, and caprice on the part of the jury.

The scene of this accident was a side track in the switchyard of the defendant railroad company, near the depot, at Highland Junction, in Fentress county. The side track and switch at this point is used for the purpose of making and breaking up trains; there being a switch commonly known as a "Y" there. This side track is crossed by two public roads about sixty or eighty yards apart. Between the two public crossings are two paths commonly used by persons traveling from stores on one side of the track to residences on the other side, and there is a path along the side of the track from one crossing to the other. These paths have been used by the public for twenty years or longer; but the evidence does not show the exact location of the paths and crossings, and no map of that location was used or filed.

On March 19, 1931, and for several days prior thereto, a car loaded with slate was standing on this side track between the two paths.

The deceased, Thomas Dial, was 25 years of age and worked in the coal mines. He was married, and had one child of the age of 4 years. On March 19, 1931, he did not work, as the mines were shut down on that day. At about 3:30 or 4 o'clock that afternoon he was seen, and was under the influence of liquor, staggering about and swearing.

At about 7 o'clock that night the railroad company shoved on the side track six cars of coal, coupled them to the slate car, and pushed them and the slate car down the track a distance of about four car lengths.

Next morning the body of Thomas Dial was found under the last coal car, between the public crossings and the two paths; his body was between the rails, and his head was severed from his body and was lying just outside of the rail. His back was bruised and somewhat bloodshot. A nehi soda pop bottle partly filled with liquor was found between his legs and an open pocketknife was found in his pocket.

1. The evidence established the fact that the accident occurred in defendant's railroad yard during a switching operation. Therefore there can be no recovery based on any statutory provisions. East Tennessee, V. & G. R. Co. v. Rush, 83 Tenn. (15 Lea) 145; Southern Ry. Co. v. Pugh, 95 Tenn. 419, 32 S. W. 311; Cox v. Railroad, 1 Shan. Cas. 475; Louisville & N. R. Co. v. Martin, 113 Tenn. 266, 87 S. W. 418; Chattanooga Station Co. v. Harper, 138 Tenn. 577, 199 S. W. 394; Southern Ry. Co. v. Simpson, 149 Tenn. 461, 261 S. W. 677; Tenn. Central Ry. Co. v. Zearing, 2 Tenn. App. 459; Tenn. Central Ry. Co. v. Hayes, 9 Tenn. App. 120.

2. But we are of the opinion that the first and second counts of the declaration state a cause of action under the common law, as it was averred that Thomas Dial was killed in a switching operation on a side track, and the rights of the parties will have to be determined by the common law.

"The statutory precautions are but a repetition of the common-law duties of the railway company, with the addition of a change in the burden of proof. E. T., Va. & Ga. Ry. Co. v. Pratt [85 Tenn. 9, 1 S. W. 618], supra, and the cases cited therein; also Patton v. Railroad Co., 89 Tenn. 370, 15 S. W. 919, 12 L. R. A. 184, and cases cited; Railway Co. v. Howard, 90 Tenn. 144, 19 S. W. 116; and Chattanooga Rapid Transit Co. v. Walton, 105 Tenn. 415, 427, et seq., 58 S. W. 737." Railroad v. Crews, 118 Tenn. 62, 99 S. W. 368, 371.

3. We are of the opinion that the third assignment of error, that there is no evidence to support the verdict and the court erred in overruling defendant's motions for peremptory instructions, should be sustained. It was incumbent on the plaintiff to make out her case. There were no eyewitnesses to the accident. The only basis for the contention that Dial was killed when an obstruction on the track is the presumption that the instinct of self-preservation caused him to use due care for his own safety, whereas there is much evidence against this presumption, to wit: (1) When last seen about three hours before his death he was drunk, reeling and staggering about and swearing. (2) He was found dead near where the slate car was placed on the day before, and there was no evidence that the front wheels of the slate car passed over him, as there was no blood or hair on them, whereas there was blood and hair on the two rear wheels of the slate car towards Monterey and there was blood on all the other wheels that passed over him, which showed that they had run over him. (3) When found, he was lying on his back with his head cut smoothly off at his shoulders, and there was no evidence of bruises or that he had been struck and rolled by the car.

The railroad attempts to show that it observed the statutory precautions and that it was not guilty of common-law negligence in switching the cars. It attempts to show that it had somebody on the first car when it was being backed onto the siding, but there is no evidence that the conductor who had a small lantern was on the lookout or could have seen a man on the track. The testimony of the defendant's witnesses on the subject of lights and lookouts is vague and not satisfactory, and does not show that the conductor was on the first car looking ahead when the cars were being pushed down the side track after being coupled. Under the circumstances we think this was negligence on the part of the railroad. Where the public uses the track, which is a part of the yards of the company, either as a...