Tennessee Cent. Ry. Co. v. Ledbetter

• Citation: 19 S.W.2d 258,159 Tenn. 404
• Parties: TENNESSEE CENT. RY. CO. v. LEDBETTER.
• Decision Date: 19 July 1929
• Court: Supreme Court of Tennessee

19 S.W.2d 258

159 Tenn. 404

TENNESSEE CENT. RY. CO. v. LEDBETTER.

Supreme Court of Tennessee.

July 19, 1929

Certiorari to Court of Appeals, on Appeal from Circuit Court, Putnam County; J. R. Mitchell, Judge.

Action by Julia Ledbetter, administratrix of Alonzo Ledbetter deceased, against the Tennessee Central Railway Company. Judgment for plaintiff was reversed by the Court of Appeals and plaintiff brings certiorari. Writ denied.

Walter Stokes, of Nashville, and Holladay & Holladay, of Cookeville for plaintiff in error.

Worth Bryant, of Cookeville, and G. C. Whittaker, of Monterey, for defendant in error.

McKINNEY J.

Between 10 and 11 o'clock on Sunday, July 3, 1927, Alonzo Ledbetter was instantly killed when his automobile collided with a switch engine of the railway company in the town of Monterey, which is a division point on said railway. The administratrix of the deceased instituted this suit to recover damages for his alleged wrongful death.

The case was tried upon a single count, based upon common-law negligence, and the jury returned a verdict in favor of the administratrix for $5,000. Upon appeal, the Court of Appeals reversed the trial court and dismissed the suit, holding that the trial court should have sustained the railway company's motion for a directed verdict.

The deceased had been employed in the shops of the railway company at Monterey as a machinist for ten years. All of the physical conditions existing at the place of the accident were well known to both the deceased and the employés of the railway company. Chestnut street, one of the leading thoroughfares of said town, is 60 feet in width, and runs north and south, and crosses the railroad at its switch yard. The railroad runs east and west, and at the point of the accident it maintains a main track and three switch tracks on each side thereof. That morning the crew were engaged in the usual switching operations.

Ledbetter approached said tracks from the south, going north. He did not attempt to stop his car nor to look and listen before going on said tracks. When he reached the main track, his car was struck by the switch engine, which was traveling west, and was shoved some 60 feet down the track, but was never overturned. When Ledbetter approached the crossing, there were two engines standing about 75 feet east of Chestnut street on one of the switch tracks south of the main track. The engineer on the engine which killed deceased had blown his whistle for the crossing, and the bell was ringing. The engine was running from 10 to 15 miles per hour, and both the engineer and fireman were on the lookout ahead. The engineer, however, was on the opposite side from deceased, and could not see the automobile. While the automobile of deceased had a left-hand drive, it appears that he was attempting to get out of same over the door on the right-hand side, and had reached the running board when the engine struck the automobile, causing him to fall under the engine.

Erbie Teeple, a nephew of deceased, testified that he was a brakeman in the employ of the railway company, and was standing on the front footboard of the engine, looking ahead for obstructions; that he could not see the automobile of deceased, on account of the two engines standing on the switch, until it was within 10 to 15 feet of the main track; that the automobile slowed up, and he jumped off "to keep from being in the tangle," and gave the engineer a signal to stop, which was observed, but that, when he jumped off, the engine was right at the crossing.

J. R. Ward testified that he was the fireman and witnessed the accident. He was seated in the cab of the engine on the left-hand side, and saw the automobile when within 30 or 40 feet of the main track. "Hard to say how close we were to the crossing, I would judge maybe 100 feet." Witness hallooed to engineer, "Look out for car;" when within about 50 feet of the crossing, he saw that the automobile was coming on the track and hallooed to the engineer, "That will do," which means to stop the engine; that the brakes were applied, and the automobile was struck; that the engine was pretty close to the crossing when he saw deceased trying to get out of the automobile, and that the automobile was about stopped when the engine struck it; and that there would have been little difference had the emergency brake been applied instead of the air brake.

The engineer, Bill Lusk, testified that he was seated on the right-hand side of the engine and on the opposite side of the approaching automobile, which he could not see; that at the rate he was traveling he could stop the engine in about 100 feet; that, when within about 50 feet of the crossing, the fireman said, "Look out for car," but that he understood him to say, "Look out for cow," and shut off his steam so that he could stop the engine when signaled to do so; that he was within 6 feet of the crossing when the fireman said, "That will do," and that about the same time Teeple jumped off on his side and signaled him to stop; that he put the brake on, but at that time he was on deceased.

All of these witnesses, the first two having been introduced by the administratrix, testified...