Tutweiler v. Lowery

• Citation: 279 F. 479
• Decision Date: 17 March 1922
• Docket Number: 3605.
• Parties: TUTWEILER et al. v. LOWERY.
• Court: U.S. Court of Appeals — Sixth Circuit

279 F. 479

TUTWEILER et al. v. LOWERY.

No. 3605.

United States Court of Appeals, Sixth Circuit.

March 17, 1922

McKinney Barton, of Memphis, Tenn., for plaintiffs in error.

Lindsay B. Phillips, of Memphis, Tenn. (Bell & Phillips, of Memphis Tenn., on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

Defendant in error was struck and injured by a car while under operation by the receivers of the street railway company. Upon trial to a jury he recovered verdict and judgment on account of the injuries. This writ is to review the judgment. The errors assigned relate solely to the refusal to direct verdict for defendant and to the charge of the court as given.

The evidence, stated, as it must be, in its aspect most favorable to plaintiff, may be thus summarized:

Plaintiff lived on the north side of Poplar avenue, between Evergreen and Auburndale streets, in the city of Memphis, Tenn. Poplar avenue runs east and west; there are two street railway tracks thereon-- the northerly track, upon which west-bound cars run, and the south track, for the passage of east-bound cars. The car tracks were inclosed (between intersecting streets) by a so-called 'neutral strip,' being the space between a curb which separated the north driveway of the avenue from the west-bound track and a curb separating the south driveway from the east-bound track, the space between the curbs being graveled. At street crossings the neutral strips were suspended, the crossings being smooth and uniform with the street pavements. Plaintiff, while on his way home, walked easterly on the south side of the avenue until he reached a point opposite his home. He then looked both east and west and saw no car. He then started across the street, continuing until he reached a trolley wire pole in the central part of the neutral strip (that is to say between the south rail of the north railway track and the north rail of the south track), at a point 216 feet west of Auburndale street. Hearing an aeroplane, he stopped on the north side of the pole, and between it and the south rail of the west-bound car track, facing southwesterly, with his left hand leaning against the post, which is within 40 1/2 inches of the south rail. His back was thus toward the east. While in this position, and still looking up and watching the aeroplane, he was struck by a west-bound car (thus coming from the rear), whose overhang was 18 to 20 inches. After leaving the pavement he had not looked again for a car because his attention was so attracted by the aeroplane. He had stood in that position two or three minutes before he was struck. He heard no gong rung, nor any warning to get off the track. Plaintiff was, of course, familiar with the place of the accident, and of the running of the cars, and knew that the proper place to cross was at street crossings. His sight and hearing were normal. The car was running very rapidly; one witness estimating its speed at 30 miles an hour, which was double the ordinance limit.

There was also testimony tending to show that the motorman did not sound the gong after leaving Auburndale street (216 feet east of the place of collision) until when within about 50 feet of the place of collision, when he began to ring the gong vigorously, 'hollering' to the plaintiff when the car was about 30 feet away, but making no effort to stop until within 10 or 15 feet of the plaintiff, there being no appreciable decrease in speed from the time the motorman saw plaintiff (50 feet away) until the collision. While there was testimony of several competent witnesses that a car running from 12 to 15 miles an hour on the track in question could not be stopped in less than 50 to 75 feet, there was competent testimony that it ought to be stopped in 20 feet at the point where the accident occurred, and under conditions there existing. There was also testimony that the car did not stop until it had passed 15 or 20 feet beyond the point of collision, and that the car was sliding when it struck plaintiff. There was otherwise evidence tending to show that the motorman, in the exercise of reasonable vigilance, could have seen plaintiff long enough before the collision to have prevented the same. At least one passenger on the car saw plaintiff and his position before the car reached Auburndale street.

There was evidence on defendant's part tending to controvert some of plaintiff's material allegations, but it is unnecessary to set it out. The prominent grounds of negligence relied on were high and dangerous rate of speed and failure to keep proper lookout, as well as to take proper steps to stop the car and avert the accident after danger thereof should, by the exercise of reasonable care, have been apparent. The ground of defendant's motion to direct verdict in its favor were: (1) Absence of any negligence which was a proximate cause of the accident; (2) that the plaintiff was guilty of contributory negligence.

The jury was instructed that plaintiff was negligent in so taking his asserted position, where he would be struck by a street car passing upon the west-bound track, and without giving heed to the approach of the car; that, accordingly, had the accident occurred when plaintiff first reached the position in question, or when the car could have been seen by him approaching in the near distance, he would be barred from recovery, and could, in any event, recover only if the jury should find that--

'After the time that the motorman saw the plaintiff was in a position of danger, or by the exercise of due and reasonable vigilance he could have seen that the plaintiff was in a position of danger, he, the motorman, was negligent.'

In other words, the recovery was permitted only under the doctrine of the 'last clear chance,' which (as interpreted by the rule in Davies v. Mann, 10 Mees. & W. 546) is that-- 'The party who has the last opportunity of avoiding accident is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury.'

Defendant contends, however, that, inasmuch as plaintiff's negligence continued to the time of the accident, recovery could be had only for defendant's failure to use due care to avoid injury, after actual discovery of plaintiff's perilous position; that in the absence of such actual discovery the concurrent negligence of both parties is deemed to have contributed directly to the injury, and so forbids recovery. Exceptions to the charge, so far as argued here, as well as the motion to direct verdict, are addressed solely to the court's refusal to so limit the right of recovery.

Upon the broad question presented here there is a conflict of authority, doubtless due in part to the differing circumstances in which the 'last clear chance' rule has been applied. In our opinion, however, the decisions neither of the Supreme Court nor of this court assert the rule contended for by defendant, as applied to facts such as exist here, but, on the contrary, so far as applicable to the facts, support the conclusion of the trial court and so justified submission to the jury.

In Inland Co. v. Tolson, 139 U.S. 551, 11 Sup.Ct. 653, 35 L.Ed. 270, a wharfinger sought recovery against a steamboat company for crushing his foot between the timbers of a wharf in a collision between the latter and the steamboat. Defendant asserted plaintiff's contributory negligence in standing in a dangerous position too near the edge of the wharf. The court charged that such contributory negligence would not preclude recovery, 'if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence. ' The Supreme Court, in affirming the judgment for plaintiff, held the instruction applicable as against defendant's objection that 'there was no evidence that the defendant knew the peril of the plaintiff, or had either time or opportunity, by the exercise of any degree of care, to guard against it. ' Defendant cites the court's remark that the jury might well have thought-- 'that the officers of the boat knew just where and how he stood, and might have avoided injuring him if they had used reasonable care to prevent the steamboat from striking the wharf with unusual and unnecessary violence.'

But it was not intimated that recovery could not have been had but for defendant's actual knowledge of plaintiff's position; for it was actually seen. There was thus no occasion to consider what would be the case in the absence of such view.

It is true that in Railway Co. v. Schumacher, 152 U.S. 77, 81, 14 Sup.Ct. 479, 38 L.Ed. 361, in denying a right of recovery for injuries to a laborer on a gravel train, incurred while he was riding with his feet hanging over the car, the court, after saying that there was no theory upon which it was proper to submit the case to the jury, said:

'There was no negligence by the defendant shown as occurring subsequent to the negligence of the plaintiff, since his negligence was continuous down to the moment of the injury.'

But there is, otherwise, nothing in the opinion to indicate that the doctrine of 'last clear chance' was in the mind of the court. But, if it were, it could have no application to the facts of the case, for the only negligence chargeable against defendant was in backing the train down at too high speed. The opinion, taken in connection with the case of Railroad Co. v. Jones, 95 U.S. 439, 24 L.Ed. 506, which the court spoke of as a case 'directly in point, and is decisive of this,' showed merely the familiar case of an employe riding in the attitude stated in spite of warnings from the company not to do so, but with...