Westbrook v. Illinois Cent. Gulf R.R.

• Decision Date: 16 January 1985
• Citation: 688 S.W.2d 453
• Parties: Grady O. WESTBROOK, Jr. and Wife, Sherry E. Westbrook, Plaintiffs-Appellants, v. ILLINOIS CENTRAL GULF RAILROAD, A Corporation, Defendant-Appellee.
• Court: Tennessee Court of Appeals

Page 453

688 S.W.2d 453

Grady O. WESTBROOK, Jr. and Wife, Sherry E. Westbrook Plaintiffs-Appellants, v. ILLINOIS CENTRAL GULF RAILROAD, A Corporation, Defendant-Appellee.

Court of Appeals of Tennessee Western Section, at Jackson.

Jan. 16, 1985.

Permission to Appeal Denied by

Supreme Court March 25, 1985.

Carroll C. Johnson, Carroll C. Johnson, III, Johnson & Bateman, Memphis, for plaintiffs-appellants.

John W. Chandler, Jr., Burch, Porter & Johnson, Memphis, for defendant-appellee.

HIGHERS, Judge.

On January 4, 1982, near 6:00 p.m., the plaintiff, Grady O. Westbrook, Jr., struck an empty railroad flatcar in defendant's train at a crossing on Channel Avenue in Memphis. The flatcar was part of a string of empty flatcars being pushed through the crossing at the time of the accident. The crossing was marked only by a cross buck, but plaintiff was familiar with the crossing, having passed this point twice each working day for at least two years.

The plaintiff suffered amnesia as a result of the collision and gave no testimony concerning the details of the accident. Other witnesses said, however, that the headlights of oncoming traffic on Channel Avenue were visible over the tops of the flatcars and that there were no railroad flagmen or flares signaling the presence of the train on the crossing. Photographs of the site show streetlights immediately on either side of the crossing, but at least one witness stated that he did not recall whether any streetlights were operating.

The plaintiff averred that the defendant violated T.C.A. Sec. 65-12-108 and Sec. 34-8 of the Memphis Municipal Code. The ordinance requires that the railroad or railroads using a crossing install automatic or manual signal lights "for the purpose of giving warning and notice of the approach of locomotives...."

At the close of the plaintiff's proof, the trial court granted defendant's motion for directed verdict. The court in its judgment stated that plaintiff was guilty of contributory negligence as a matter of law. In explaining his ruling to the jury, the trial court pointed out that the statute was inapplicable to the case.

The plaintiff's chief argument is that the circumstances of the accident created an ultrahazardous crossing by giving the impression that there was no obstruction on the tracks because the flatcars were so low that lights from traffic opposite the crossing were plainly visible. The defendant contends that the plaintiff was not only contributorily negligent as a matter of law but also that the defendant was not guilty of any negligence.

Before addressing the arguments, we take note of the fact that this appeal comes to us from a judgment based on a directed verdict. With the case in such a posture, we must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary. The trial court's action may be sustained only where the evidence is uncontradicted and a reasonable mind could draw but one conclusion. Bowers v. Potts, 617 S.W.2d 149 (Tenn.App.1981).

The defendant argues that the railroad is simply not guilty of any negligent act. Indeed, as held in McCampbell v. Central of Georgia Ry. Co., 194 Tenn. 594, 253 S.W.2d 763 (Tenn.1952), the statute cited by the plaintiff is inapplicable to a case of an automobile running into the side of a train. The Court stated "that this subsection did not apply to the case of an automobile running into the side of a train at a road crossing ... [it was] designed to prevent persons from entering upon the track." (Emphasis added). 253 S.W.2d at 764. Likewise, the ordinance relied upon by the plaintiff expressly states that it is "for the purpose of giving warning and notice of the approach " of a train upon the crossing (emphasis added).

Even if the defendant had been negligent, however, contributory negligence on the part of the plaintiff will bar recovery. See McCampbell v. Central of Georgia Ry. Co., supra. Under normal circumstances, one who collides with the side of a moving train at a railroad crossing, with which the plaintiff was familiar, would be guilty of contributory negligence as a matter of law. Bachman v. Illinois Central Railroad Company, 132 Ill.App. 277, 268 N.E.2d 42 (1971).

In Jeffreys v. Louisville & Nashville Railroad Company, 560 S.W.2d 920 (Tenn.App.1977), Judge Nearn, writing for this Court in a factually similar case, held the plaintiff to have been guilty of contributory negligence as a matter of law where the plaintiff's automobile was struck by defendant's train as the vehicle crossed the tracks. When the train had already reached the crossing, as here, however, an even more compelling case is made out for a finding of contributory negligence in...