*1 surety appellant appeal bond cellor will affirmed. pay appeal. costs of Senter, JJ.,
Owen concur. NASHVILLE RAILROAD
LOUISVILLE & COMPANY MRS. v. AND MRS. BETTIE
MAMIE FRAKES PAYNE.
Middle November 1928. Section. Court,
Judgment by Supreme May 24, affirmed 1930. *3 Jr., Nashville, & "W. Seay, Keeble, Keeble A. Stockell and J. B. plaintiff in error. Berry Nashville, & Bass, Sims, of for defendant error. together by jury in P. J. consent before a FAW, Two eases tried brought county have been Court of Davidson the Second Circuit transcript the above in one and docketed here under to this style. judgment separate A verdict was returned and a separate judgments Louis- from each of these case, in each rendered below, Company, appealed has & ville Nashville Railroad *4 court. in error to this 1926, an au- evening of November in the six o’clock About Payne riding, were and Luther Walter Frakes
tomobile, in which train, Pan-American, owned by known as the passenger a was struck Company, & Nashville Railroad on by Louisville operated the and over tracks of said rail- Island Road the Shackle of the the Hendersonville, county, in Sumner station company, at the road Payne collision, both Frakes and, a result Tennessee, as killed. surviving* Frakes, sued, for Frakes, Mamie Mrs. widow of "Walter her surviving the benefit of herself and three minor children the damages (laid husband, in the declaration at deceased recover to killing $50,000) negligent said alleged wrongful for Walter Frakes. surviving Payne,
Mrs. widow sued to Payne, Bettie of Luther surviving chil- recover, for minor the benefit of herself and five damages for al- husband, like dren her deceased sum leged Payne. killing wrongful negligent of Luther and, overruling $15,000 case, for after
There was verdict each company, a’ new on railroad the court motion for a trial behalf against plaintiff judgment verdict in favor rendered on the $15,000 com- The railroad the defendant each case for and costs. granted of error pany perfected appeal an in the of a writ nature by been the case heard this to trial court and has thirty-six assignments of error on behalf of the record, on the argument by able company excellent briefs and oral railroad respectively. parties, for the counsel statement, Mrs. Mamie Frakes we will refer to
For convenience & Payne Nashville plaintiffs, and Mrs. Bettie to Louisville Company Railroad as defendant. below, trial the defendant on the the close of all evidence
At jury a verdict to return peremptorily instruct moved the court sup- no evidence to ground that there was for defendant on the This motion was overruled plaintiffs. in favor of the port verdict through assignment error, and, its judge, first the trial ruling. complains of this over- for new trial grounds motion One of the of the defendant’s there is no evidence was, substance, trial court ruled and the plaintiffs, in favor of the support the verdict action of the on the assignment of based error is defendant’s second motion ground overruling defendant’s judge in trial a new trial. have mentioned assignments of error above first and second and evi- carefully pleadings necessary for us examine
made evidence—because as the pleadings as well record—the dence introduced evidence inquiry simply whether there was respec- plaintiff’s behalf of support an action which would defendant, was evidence but whether there tively, against alleged declarations. of action support the causes which would may considered well be assignments of error second The first and required the submission evidence for, if there was together, peremptory motion the defendant’s case over jury, verdicts for support instructions, was sufficient evidence there plaintiffs.
With the exception necessary of the in of differences names plaintiffs, beneficiaries and deceased, material averments in substance, the two are the declarations cases same in and will understood our statement the contents “the declaration” refers both to cases.
The declaration contains two counts. The known first count is the record as count, the common-law and in this alleged count it is disregarded, neglected perform and to discharge, defendant and specified certain which it duties owed to the deceased men under the alleged common law. In the second count it is that defendant failed requirements to observe the 'of the embodied in statute subsection requires Code, “every of section of Shannon’s rail- company road keep engineer, per- shall other fireman, or some upon locomotive, always ahead; son upon the and lookout when any person, animal, appears road, or other obstruction sounded, every put down, pos- alarm whistle shall be the brakes and stop prevent means and employed sible the train an accident.” count of plaintiff’s each it is averred the death deceased In proximate a negligent husband was result of direct wrongful agents conduct and servants the defendant there- a alleged. plea guilty interposed The defendant each declaration. manner, stating,
As a method in a certain facts which concise quote practically undisputed proof, from we from the dec- appear as follows: laration ‘‘ years many 16, 18'26, prior or about and for there- On November system to, a of railroads ex- defendant owned maintained New Or- Ohio, State of tending generally from Cincinnati in the system Louisiana, ran from lines of which the State of leans Kentucky, Louisville, Ohio, through Nash- City Cincinnati, Orleans, Alabama, to Louisi- Tennessee, Birmingham, New ville, day aforesaid, con- ana. Said on about the defendant Cincinnati, prior thereto, operated a direct train from time siderable schedule, which train Louisiana, a fixed Ohio, Orleans, New train Pan-American. Said as the known and advertised and extra elaborately large of steel cars equipped with number deluxe, extensively as a advertised engine, and was powerful extremely high required an operated upon a schedule that and was in a min- another from one terminal to so travel speed, as to rate generally ad- part hours, of which was a all number of imum train. operation of said concerning vertised facts ‘‘ the cities of company between railroad line defendant The said through Tennessee, passes Nashville, Louisville, Kentucky, being Tennessee, county, there Hendersonville, Sumner town point where near the tracks said railroad adjoining station railroad extending public Island, Tennessee, road from Shackle to Hen- right dersonville, way crosses the and tracks of defendant’s said public highway extensively Said is well known line. traveled company and crosses the railroad highway, lines of the defendant right village angles Hendersonville, and runs almost at crossing.” company’s rails of lines at said The remainder of the first count of the declaration includes some *6 which, by quoted, supported averments un- like above those admittedly disputed testimony, which were and other averments testimony subject sharp witnesses, the conflicts in the the concerning which others, plaintiffs, essential a verdict for- still to - evi- disagree -there was or a conflict of counsel as to whether being through counsel, that, by defendant, contended dence—it its recovery a respect to averments of facts essential to the (1) any negligence on the plaintiffs, showing there is no evidence shows (2) evidence part defendant, the uncontradicted the directly negligence guilty of which men were deceased to their death. proximately caused or contributed just contentions If either of the the record sustains defendant’s rules, follows, trial stated, under well established notwithstanding defendant, refusing to direct a verdict erred which, al- respect to facts between witnesses with numerous conflicts controlling issues. determinative of the though relevant, were not W., 319. 323, S. Brown, Tenn., 331, Company v. Traction declaration,, of the' common-law count quote We further from the as follows: company, a railroad alleges lines' of defendant
“Plaintiff that the sharply west, crossing, curve distance north of said short through a de- extend place lie in and same said lines at the There deep. sixteen feet cut, approximately twelve pression, or lines, and between of said railroad on west side was located large loading pen, a crossing, a stock and said south end of cut said which depot, railroad station lumber, tool house and stack were constructed which building, and all of oblong large, high, awas to these In addition company. defendant and maintained 16, November to-wit: day question, structures, permanent on on the side box cars left four placed and had crossing and said between of its main lines west side track on the said railroad approaching cut, person a so that south end of said towards traveling the west from crossing public highway, on said on approaching train not see a Hendersonville, could the town south, going towards north, and .lines from the said defendant’s defendant’s of said rail on west practically person said until thereon, his running of a train striking distance line and within view of approaching being entirely train obscured ob- arriving structions point. aforesaid until at such a “The land to the west of public tracks at said defendant’s n great high and for a crossing north of said distance hilly and covered with trees, whereas the land east of defendant’s crossing lines crossing lower, at said and north of was much said a through result topography of this tracks, and said cut said person traveling highway crossing on said west of said could not hear approaching sound of an clearly, train or as much so as on side, being approaching crossing east noise of a train so de- away flected from the’ west towards the east side of said tracks. ‘‘ foregoing physical person traveling Because of the situation highway said west said tracks could neither see nor hear crossing approaching north, said from and the defendant rail- ‘wig- company road had erected at said what is known as wag’ alarm, consisting signal light, of an overhead with a red which .signal put approach- was so constructed as to be motion a train ing ap- south, said from either-the north or and said causing proach also likewise an alarm bell attached to said mechanism crossing signal was,supposed begin operating in sound, traveling person public road, sufficient time to warn a on said so as prevent going him from oh said tracks when one of the defendant’s *7 crossing. approaching said trains was husband, 16, 1926, plaintiff’s Payne,
“On or about November Luther work, crossing riding approached company while home from said traveling Frakes, automobile, Walter in a Ford east towards crossing Hendersonville, tracks, and while said railroad of town safety, fast exercising care for their own defendant’s train due wholly Pan-American, cut, came out of said without known as the highly any running and at the reckless rate of warning character, of hour, seventy miles an and crashed into speed approximately of riding, totally plaintiff’s husband in which de- the automobile was hurling plaintiff’s and hus- molishing body automobile said fifty crossing, said forty band an embankment or feet from down body in- mangling mutilating that after bruising, and so and his could be he died before he physical sufferings, tense and mental for him. could be obtained and before medical service removed an train was more than that Pan-American “Plaintiff avers said at time of the regular schedule, and that than its hour later agents and em- being operated by the defendant’s .accident it was ap- negligent speed, to-wit: highly rate ployees a reckless and making up purpose seventy hour, an for the miles proximately wigwag crossing signal had been or time, said and that (cid:127)said lost carelessly become out by the defendant allowed and negligently n approach function operate and failed to repair, so approached husband train, plaintiff’s of said time deceased and crossing signal wigwag or indicated to travelers said said approaching. highway at that time no train was given any signal of the em- warning “No or kind was crossing. ployees operatives approach train of its to said or on the rung, bell a engine Neither on the was blown nor the the whistle said did warning traveling highway, and persons on said plaintiff's until appear out of said cut around said curve and striking dis- and within said deceased husband was tracks going train, did was said train when it appear, tance said and for the auto- high speed impossible at such a rate of riding proceed plaintiff’s husband was mobile in which deceased striking said train distance before said tracks and out of across automobile. crashed into said direct alleges her husband a “Plaintiff that the death of (cid:127) negligence
proximate reckless carelessness and result running employees, in company, agents and railroad its speed, in rate of highly a reckless operating said train at such safety traveling on said persons disregard lives and total public cross- over and across said public particular, and in highway, highway was so obscured on said ing person view of a where the surroundings above set out physical hearing so obstructed approaching train until or hear said impossible it was to see said impossible to cross thereof, then striking distance within train; also being approaching tracks, said without struck signal allowing permitting said carelessly negligently or tha,t said proper repair so out of wigwag become and remain or approach of person warning crossing signal instead deception trap actively affirmatively became train,’ and also indicating was coming, no such train person crossing un- recklessly approaching said carelessly, negligently whis- sounding the out without circumstances hereinabove set der the al- give approach. Plaintiff warning of its ringing bell to tle or of’ all times in the exercise leges deceased husband was at that her safety.” care for his own due alleged specifically facts not proof discloses certain understanding conduce to better
declarations which will *8 collision, follows: attending the as circumstances the Payne, lived near men, Luther Walter Frakes and The deceased county, were and in Sumner Hendersonville pike, north of Gallatin county. in Davidson Plant” “Powder employed as machinists at the more than Powder at the Plant They employed had been thus the time they their lives. At year lost before the collision which thereto, the Gal- prior for four or five months and collision, of the most Hendersonville, which the usual and was pike latin south Payne direct route to travel from to the homes Frakes the Plant, undergoing necessary Powder reconstruction, was and was they pike for them detour, by leaving which did the Gallatin at to. going-by By Hendersonville Shackle Island and Goodlettsville. impassability reason of the pike stated, Gallatin above the as the public travel over the Shackle Island from road Hendersonville very heavy. crossing The of the Shackle Island road over the tracks station, crossing at Hendersonville on which the collision question Gal- occurred, is about one-fourth of a mile west the pike. place of returning latin The deceased men were from their they work met to their homes in their accustomed manner at the time crossing They necessarily their death. were familiar with the they work surroundings, passing its had. been over it on each twice day the four or five months. the time of collision were At riding up. in a with the curtains Frakes and Ford automobile Payne only occupants car at it was struck were the the time Payne driving at the train. owned the car but Frakes time. declaration proof supporting the averments of the
There is much territory surrounding cross- respect topography the with approaches the ing, in which railroad track the manner to the view north, existence obstructions from the and the crossing from approaching road on the Shackle Island travelers crossing and. its sur- general description of the west; part contained in roundings approaches thereto and the repe- may without quoted adopted we which have (cid:127)declaration topography of the terrain tition; the extent to but prevented deceased alongside railroad track the obstructions controversy subject seeing approaching train ais men from n concerningwhich speak particularly. more presently we shall time of at the there was also shows undisputed proof The theretofore) a considerable time (and for a had been collision alleged in alarm signal and an “wigwag” bell warning these to whether dispute as there is a declaration, but time. .signals operating at con- respect to the proof facts disclosed Additional cross- objects north of location and the at the ditions follows: ing, are as extending north- crossing on railroad tracks two There are north of the point somewhere undisclosed an junction to a ward n severalstructures tracks these One of declaration. mentioned “pass- as the known other is and the “main track” as the known ad- main track being west of track latter track,” ing collision oc- The pens. and stock building station jacent center of between distance main track. curred
603 passing main track of feet, and the center the is 12.9 and track the distance between the nearest two rails of the main track and the passing track, track 8.2 rails, feet. The width of between is is each 4.7 feet. permanent
All of the structures and stack lumber, the of men- tioned in view, declaration as obstructions to the were the the on tracks, side of except west the railroad tool house, the which was east of main 236 the side the track and north of the cross- feet ing. The pens high, fence stock around feet and the the 5J4 loading live pens passing chutes stock out of into on the the cars height. semaphore signals track were 10feet in There were two of 649 north the other 669 feet the feet and the from —one 1422 crossing. (for signals) “whistling post” There a signal crossing. wigwag north of be- feet the The and alarm bell operated by were means of electric circuit which fore-mentioned an (if functioning normally) wigwag “cut in” and the banner set ringing approaching and a from motion the alarm bell to when train point crossing, kept 1947 from and the the north reached feet the ringing rear the had banner in and bell until of motion the the' passed crossing. over the declaration) by (as alleged that, a proof is the in the
It shown curves the defendant’s track short distance north of the through, cut. It is enters, extends sharply west and feet alleged twelve to sixteen “approximately is also cut “high- measurement, by deep.” shown, proof It actual is cut) meaning point (presumably cut” the wall est n in either di- point gradually, feet, 12.8 and from that it declines feet, grade 300 where it reaches the rection, for distance of about level of track. locomotive, of the same undisputed of a measurements
Certain Ford car which Frakes that which collided type as evidence, appears from these it riding, put in Payne were were feet, top of smoke-stack rail to top from the (which is headlight center inches, from the rail 1% “on the front line center end door of the locomotive headlight is not boiler”) inches. The diameter feet, is 9 9% that the a witness from an estimate shown, except inference smoke-stack, top lower than the about inches boiler is boiler the-headlight top from the center the distance feet. is about or 2% there were three or collision occurred when the appears It (mentioned cars, standing on the sidetrack stock ears,
four box crossing and track”) between the somewhere “passing as the above testimony to the effect pens, and there is srrbstantial stock alongside standing them, were then least ears, or two these building point building station down to near tlie south end crossing. near plaintiffs quo, introduced witnesses familiar with the locus veracity attacked, who whose for truth and characters high testified, ground effect, that, substance and reason of the (west and timber between the Shackle Island road and the railroad road) and the ob- the railroad and north of the Shackle Island (including’ view the box cars or structions near track *10 cars) practically impossible mentioned, stock which been it was have traveling Island road east- for one in an automobile on the Shackle station, a crossing ward toward the railroad at Hendersonville crossing, a train com- distance of about a half-mile from the to see point a between the ing from the north until the traveler reached prac- crossing was tracks on where the front of his automobile the crossing tically striking passing a over distance of train .within on the track. main land east of the railroad track proof There was also (as compared elevation crossing with the north of the was low track), approach- and that trains and the land west of track much more much sooner and heard ing north could be seen from the on west distinctly track than by side of the persons on east side. he watched the (Gregory) plaintiffs
A witness for testified emerged from the cut until question from the it time train and, running a it was at passed over locomotive saw hour, he “never and that speed sixty seventy miles an or v go faster.” any train (who had been for was, and T. Rutherford J. Plaintiff’s witness Hendersonville, twenty-three rural mail carrier years, a about crossing) testified immediately southeast lived who heard, col- noise of the yard near the in his was he speed testimony as to the around. ITis and looked lision was as follows: train, you looked around at that “Q. Rutherford, when Mr. going around, was and looked it you that noise say heard you I saw one ever fast, as fast Going pretty A. fast slow? or go- I ever fast as say? going about as
“Q. A. was It What go. saw a train would, opinion? your going, say “Q. it How fast seventy hour.” miles an sixty Something between A. drawing locomotive on engineer and fireman The defendant’s the train testified collision at the time of Pan-American hour as fifty an miles forty-five or of about running speed aat crossing. approached it It is shown that the locomotive struck the automobile with sufficient force hurl forty feet, or and in fifty its course it struck a switch stand a short distance south of the and threw the switch, but speed carry of the train was sufficient to the lo- comotive and one coach over the switch “opened.” before it The re- mainder of the exception with the train, coach, the rear went onto sidetrack and was wrecked. any
Was there
jury reasonably
evidence before the
tending to
prove
alleged negligence
defendant,
proximate
as the
cause
of the collision
resulting
and the
death of Walter Frakes and Luther
Payne?
If
was,
there
refusing
trial court did.
not err in
di
rect
defendant,
verdict
for “there can
no
be
constitutional
exercise
power
any
direct
verdict
ease
where there
dispute
any
as to
material evidence,
any legal
doubt as to the
conclusion to be drawn
upon
from the whole evidence
the issues to
tried,
but
go
jury.”
the case must
Partridge,
Hines v.
Taking up first the common-law count the declaration and the evidence as it relates opinion count: We are of the that ac- negligence predicated upon tionable cannot be obstructions to the alone, by no (2 view matter whom erected and maintained Tenn. App. R., p. 5 392, App. R., p. 99), merely and Tenn. nor apart speed from surrounding conditions and at- speed tendant circumstances. “While no rate of neg- is itself may ligence, negligent be high it to run a train at a of speed rate through populous community frequented and over a much cross- ing, crossing or over a where the view of the track is so obstructed dangerous. approach although as to render the This is true country district, the accident occurs is in where 22 by public.” R. L., p. 1013, is much used C. sec. 244. Milam, Lea, 226, stating v. 9 223, the case of Railroad after
In eases, had been held pre- in several it that there was no law that, 606
scribing- run, be the court speed at which trains should rate said: may
“Nevertheless, speed which the it is be cases in evident there time, at the taken connection with the other circumstances existent question negligence may in the inquiry, be an on the element by mischief, power use of of such machinery tremendous statutory parties reg- Independent it of our having under control. question is, the com- ulations, principle applicable this rights enjoy rights, of others shall pany must so their own as that the injury property, when this person be nor done to infracted, by care. prudence of the can be avoided the exercise utmost un statutory regulations embody principle, and it “Our but question stated principle applicable The to this them all. derlies Appeals York, of New accuracy Court of with reasonable Company, 64 N. v. Delaware and Hudson Coal the case of Massoth statutory fixing regulation no the rate 531, there is Y., that ‘where question fact, speed whether the rate speed trains, is a it locality, if found dangerous so excessive or injury, the road would be rate caused the jury, and such excessive Company, H. R. damages.’ v. R. also, See Wilds R. for the liable 29 N. Y.” Supreme Court followed our law thus declared has been 678; E. T. Cas., 676, Railroad, 3 Shan. v.
in other eases: Fitch 0; 1 79 244, W., S. Tenn., 240, 85 Winters, W. v. & N. C. Railroad W., 58 S. Tenn., 415, 105 Walton, 427, etc., Co. v. Chattanooga, 666; C., N. O. W., 94 S. Tenn., 13, 117 736; Porter, 20, v. Railroad W., Tenn., 74, S. Wright, & T. P. Railroad Co. v. 192. W., 494, 507, S. Tenn., 641; Interurban, v. Stem review, for the under light proof in the case In the parties, circumstances, situation to look to “all track, near obstructions premises, the topography the- determine” whether circumstances and other and from all these ‘‘ running the train caution in proper care and exercised defendant 428.) (105 Tenn., accident.” place of the time and the at the failure question of whether touching the The authorities af- would of the accident operate at the time wigwag signal to plaintiffs are independent cause of action ford an conflict. may question preter- 788. p., But A., L. R. Note, 1916D, had no undisputed later, for, as stated mitted, *12 wigwag and know, the to opportunity notice, or reasonable guilty was therefore order, and defendant were out bell de- impose the respect. did not The law in that negligence warning signals automatic maintaining duty the fendant working signals were not that these fact crossing, but the the long period by for the defendant operation maintained had been
607 immediately preceding’ of time question the accident in was a circum- might stance which jury the properly take into consideration in determining whether due care exercised men. was the deceased Railroad v. 131 22 Gilbert, Tenn., 201, 206, W., 812; L., R. C. S. p. sec. 274.
It should be stated in this connection there is no evidence that the knowledge, had put defendant information which would notice, signals prior accident, to the automatic at the order; undisputed out of tes- it is shown timony Alexander, of Mr. agent station at Henderson- defendant’s ville, wigwag operating that the properly and alarm bell were when going passed the last train the Pan-American Hen- south before dersonville less than an hour before collision. upon which,
But there is evidence in the when taken in record relating surroundings physical connection the evidence to public, crossing, use and the obstruc extent of its sight tions have defend hearing, could found that guilty negligence proximately ant was of actionable caused alleged Payne, particulars the death in two in the of Frakes and running dangerous declaration, (1) high viz: the train at a (2) give timely warning speed, failing rate of cited, approach crossing. supra, of the train to See authorities (as crossings,” duty speed at “blind and also as to of trains give crossing), L., pp. C. approach public R. notice of of train to 997; App. R., 384, 393, Tenn. and other Ross, v. Railroad authorities there cited. agree counsel for defendant
We contention of cannot to the Gregory, relating failure testimony plaintiff’s witness approached engineer sound the whistle as the weighed testimony, should not be negative and therefore engineer, fireman and other testimony against positive whistle was blown testified that the who witnesses whistling post mentioned. before or near on the east substance, that, from his Gregory testified, in home yards north of two hundred and about railroad track side of the ordinarily hear the (and place where he could at a “rumbling” north) heard coming from the he of trains whistle of the cross north over a half-mile a trestle train as it crossed of a schedule time later than (thinking it was then ing, ascer in order to Pan-American) whistle for the he listened freight that he train, passenger train or tain whether it crossed time the train from the although he listened whistle, heard no time from the the train trestle, and watched the aforementioned crossing. passed over until emerged the cut from locomotive testimony. Rail Central Tennessee negative, positive, not This was *13 608
way
Page,
Co.
Tenn.,
v.
153
282
89,
376;
W.,
S.
Butter v. Met
84,
ropolitan
Railway Co.,
Street
93
App., 354, 358,
W.,
Mo.
S.
7.
87
In the ease last
it
cited,
is well said:
“When
is in a
witness
none,
situation and
and, listening,
condition to hear a sound
hears
his
that
statement
he heard
not or
that
it was
made is as
not
much the
fact that
was no such
affirmation
there
sound as
by
would
another
assertion
witness
like situation that the
made,
sound was
an affirmation of that fact.”
testimony
jury.
Such
Metropoli
raises an issue for the
Butler v.
Railway Co., supra;
tan Street
Pacific
Co.
Northern
Railroad
v.
1015;
Freeman,
Ed.,
It follows from the above stated the trial court did views that jury to declining err in to direct the return a verdict for the undisputed count, defendant under unless was the common-law there susceptible inference, of no other reasonable the de- evidence, that negligence contributed, proxi- were which as a ceased men guilty deaths. cause, bring mate about their own testimony There no in the record to the effect that the deceased automobile, they looked listened for stopped men their or that by going upon the track struck de- train, before where rely (1) plaintiffs upon the But, point, on this fendant’s train. arising self-preservation, out of the natural instinct presumption, Payne circumstances, care in the Frakes exercised due that contributory negli- did (2) plaintiffs’ proof not disclose that Payne, therefore, Frakes the burden gence part and, on the this, plaintiffs negligence, to show such was on the defendant insist, has not done. defendant (1) “pre- by no insisted counsel such For it is defendant facts under mentioned “obtained sumption” as that above ’’ cases of between travel- is, they collisions case, say, this tracks, crossings over railroad trains, highway on and railroad ers contrary, is that evidence to the absence of presumption, in the prima facie was the negligence, and his fault guilty of the traveler (2) presumption if injury, cause of proximate by disappear, evidence or caused to case, rebutted, arose this contributory showing proximate behalf of introduced men. negligence of the deceased which is much care,” concerning there of due “presumption case, in the sec is defined of counsel in the briefs
discussion (Vol. 257), 1, sec. as' fol Evidence Jones on (1926) edition of ond : lows ‘ ‘ the; tending to show the con- proof Generally, absence there are an accident is killed person where
trary,
no eyewitnesses,
presumption
law
is that he was in
Thus,
exercise
due care.
presumed
it is
a person
stopped,
looked
and listened before
railway
track.
usually
The presumption
only
invoked
cases,
in such
and the
that,
true rule is
in the absence of witnesses as to what deceased
did or
precaution
failed to do
way
immediately
be-
a,
fore the
injury,
presumption
time of
that,
arises
prompted
instinct,
natural
safety.
he exercised
his
care for
own
This
presumption
only,
is of fact,
and is for the consideration of the
jury;
it rests
principle
the observed
that men
conduct
usually
ordinarily
safety;
do exercise care for
own
*14
their
hence,
if there is direct
to how
evidence as
the deceased was
conducting himself
particular
par-
time and on the
presumption
weight
ticular
can have no
occasion,
and does
Clearly,
obtain.
the presumption
indulged
cannot be
where
plaintiff’s
negative
own
is such
evidence
as to
truth
connection,
thereof.
It is also
remembered in this
how-
ever,
contributory
that carelessness is
negligence,
usually
that it is for
allege,
the defendant
upon
and-the burden is
prove,
negligence.”
him
contributory
foregoing
think
quotation,
We
from Jones on Evidence con-
tains a correct
prevailing
of law
Tennessee.
statement
in
Tennessee
Herb,
Tenn., 397, 401,
Central Railroad Co. v.
Tennessee Central Co. v. 98. R., Tenn. And that presumption ordinarily personal injury such in obtains cases, injured in the per- absence evidence of the of the conduct son, defendant; is conceded the learned in- counsel for but crossing cases, sist review, that railroad such here under as that rule, exception and, should constitute an in course of an argument made, they support extended in contention thus quote (3 Ed.), 1658, from Vol. Elliott on Railroads sec. where the says: author in
“The rule which to us to foundation seems have best is, principle, that in cases of collision between travelers and rail- presumption, anything in the absence of road trains the contrary, is, guilty negligence, and hence that the traveler that, prima facie, proximate injury, cause of the his fault was a presumption no in his or at least that there is favor. warning itself
“It is established law that the track which, being danger, and it is fact of because of its a matter judicial general notice, knowledge, multi- courts take that safety. It persons pass over railroad tracks in is also tudes of therefore, judicial- knowledge, a matter a matter of common part will ly care on the of the traveler known, reasonable that safety. ordinary enable him to cross the track in eases all These considerations require the conclusion, believe, as we that prima facie there was pure either accident, if or, there was negligence, negligence that the plaintiff of the was nevertheless proximate cause of injury. It seems to us that evidence plaintiff that a received injury an at a crossing* railroad of it- self proves neither negligence part on the company nor the absence of contributory part fault on injured per- son. But on question this there is of authority, for conflict many high standing courts hold presumption that the: is that contributory there was no negligence on part plain- tiff. The supported by rule weight is, authority as we already have said, proving contributory the burden of negligence is on defendant, but question this there is great Granting, conflict authority. however, that the rule is cases other than injuries actions to recover for at cross- ings the burden defendant, is on the seems, nevertheless, there much reason holding apply it should not ’’ cases.
But accept Judge we cannot Elliott’s stated, view as above reason, if other, no Supreme ranged that our Court “has itself large majority with the country holding tribunals that, plaintiff’s contributory negligence where a appear does not from proof him, adduced the burden to show its existence rests defendant,” jurisdictions held “in has as ours (cid:127).the proving contributory negligence the‘burden of on the defend ant, negligence further part rule is absence of on the *15 may person killed presumed be from natural instinct self- preservation,” presumption in that “the based on such natural may employed negligence stinct cases where there are no eye of, testimony to, person or in witnesses direct the conduct jured at the time of the accident leads to his death.” Ten Herb, v. Company supra. nessee Central Railroad l Railway However, as held this in Tennessee Centra Co. App. arising Melvin, R., supra, presumption v. Tenn. “the only self-preservation application natural has from the instinct circumstantial, tending to evidence, either direct or the absence of surrounding the deceased at the time the circumstances his show disap occurred, how injury or as to accident was received ease, and, instant produced;” when evidence is pears such primarily if insists there was through counsel, that, its defendant, men exercised due care for their the deceased presumption crossing, presumption safety approached own disappear, introduced on be evidence rebutted, and caused on which below. evidence defend at the trial half of testimony of the witness contention support this relies to ant George Coley who stated that he came on the Island road out Shackle point seventy-five yards about or one hundred east of the cross- looking ing and, crossing, coming toward the saw an automobile he toward from the he automo- west, watched the bile until it was within or fifteen it ten feet and that Coley’s stop. quote testimony point, did not "We on this as fol- : lows “Q. you anything up Did on other side see the road .on A. Well, coming I seen car on the other side. the track?
“Q. coming A. Saw an automobile down on other side? Yes, sir. headlights? lights it, Yes, sir, Did it A.
‘‘Q. have on lights had on it. “Q. you it, you saw could tell Whereabouts was when exactly looked, up No, where it was there? A. sir. It seemed track, looking I ten, when was to be about or fifteen feet of the at it.
“Q. A. Yes. you looking it? When “Q. on, A. I walked you do? turned and Then what did stop. thought going I it was I
“Q. A. Then heard crash happened? Then what motor. “Q. you until heard long, you turned, ITow from time just off, walk and made A. I and started to crash? turned I reckon. step, about a
“Q. Yes, A. you crash? sir. Then heard the you “Q. Now, moving time at the automobile still was this A. Yes, saw it? sir.” last subject: Coley further, cross-examination, testified
On Yes, coming? A. sir. “Q. automobile And saw the you whs it in feet, ”Q. it, it was ten you And watched until said, A. I ten you crossing, first saw it? when ten feet of the crossing. feet, fifteen you ”Q. feet of the in ten or fifteen when It was I saw it. A. When last first it? saw I know. A. it?
<£Q. you first saw it, Where was when dou’t idea. A. I no “Q. far? have how About automobile, watch “Q. many did minutes How myself. time didn’t there? coming down I A. up, towards long? A. When it came “Q. how About I and walked stop, turned going crossing thought it was I *16 off. A. long? you how you I about that, asked “Q. I ask didn’t idea. have no I don’t idea. A. I don’t have no say minute? “Q. you Would ' “Q. / No, No idea at all? A. sir. “Q. you. Do Huh? reckon it a week? A. No, sir. was “Q. day? Well, was A. No, it sir. “Q. then, give Now us A. I some sort of idea. out come coming and seen I up expecting it the crossing, and was it to stop, and I turned and walked on.
“Q. walked, you You coming, yard? saw it A. out in the I road, saw it when I come out on the I looking, and seen was up the car come the road. ‘ ‘ Q. you Where ? when saw the automobile A. you, first I out Savely’s, standing of Mrs. came was the road.
“Q. you gate, you Had come out of when saw first the just automobile, coming got gate. or A. out? Just out of the ‘‘Q. you ? up already Then walked road A. I was the road. ‘‘Q. long you there; you you How did stand said there stood coming? I minutes, and saw it A. Not over two or don’t three reckon.
“Q. down, minutes, Two or three and it came on the bell you ringing Yes, A. though, car, was before saw the wasn’t it? sir.
“Q. sir, ringing, Sir? A. the bell when the No, was re- crossing. car up flection of the came to the “Q. A. I What, I understand that? said the bell didn’t coming ringing, up was the reflection of the car to the was crossing.
”Q. you ringing I bell saw the automo- say, the was before Yes, bile? A. sir.
“Q. you there, it, Then came out and stood and watched ? I you long, A. reckon it was that minutes, or three think two I left. before
“Q. Yes, Sir? A. six1. “Q. minutes, for two or three until watched it And ? A. Ten or fifteen feet. the track up, within ten feet of came ‘‘Q. track, ring- and the bell was feet of the Ten or fifteen whistling? A. waving, and train was ing, and the arm Yes, sir.” testimony Coley’s is that he was look- the effect
It is seen that traveling an indefinite un- while it was ing the automobile until direction of the in the distance estimated crossing, and that feet of the or fifteen within ten point reached according tes- looking it. But he was stop while it did plaintiffs re- introduced four timony witnesses of three village district business Coley witness buttal, of a mile from one-fourth pike, about Gallatin on the Hendersonville *17 tbe time tbe at tbe collision occurred. If these rebuttal Coley truth, witnesses tbe Payne told did see not tbe Frakes and au tomobile approach tbe as and testimony be bis in stated, respect testimony was untrue. "Wheretbe truth of tbe of wit is any ness in recognized law, discredited of the modes tbe credi bility of exclusively such witness is a matter for the determination jury. Wright, 535, 542, W., tbe v. Tenn., S. 434. Frank Mills,
In Frank v. Wright, supra,, was, tbe whether who issue regularly employed was acting Frank’s was in tbe course chauffeur, employment automobile, of bis as such chauffeur tbe Frank’s time strucjk by Mills, fatally inljured Wright’s and driven 'intestate. Frank testified that car bis knowl- tbe was in use tbe time without edge authority, or him; on no for that tbe chauffeur was mission insisted, testimony that, and Frank’s counsel as Frank’s was un- opposed contrary, evidence tbe tbe facts did not to warrant tbe jury. that, tbe tbe held Supreme submission of case to Court Tbe resembling being as car “was used under conditions those which normally in use in attended its use connection with its the Master’s business,” (in presumed proof would on tbe tbe absence of subject) Mills, acting in course of bis chauffeur, tbe tbe view employment question, that, time in of tbe fact at tbe Frank his tbe cross-examination of tended discredit truthfulness Tbe proper jury. it was case to tbe -witness, submit the as jury testimony of Frank “If should thus tbe said: tbe discredit question, point on occasion put tbe tbe use car tbe on liability for of bis chauf- prima tbe facie case of tbe tortious bis act law, matter tbe destroyed, therefore feur would not be properly denied.” in Frank’s favor was direction of verdict reasoning, in tbe Frank ruling, and of tbe court We think tbe question controlling tbe directly applicable and case, supra, case, and it was in tbe instant under consideration now they testimony accept reject say jury to whether would testimony (and im- Coley’s tbe verdict jury rejected Coley. If tbe part of care on the tbe did), presumption due they plies that unaffected, for consideration men remained, deceased jury. stated, we must sequence of views hereinbefore necessary our
As a
Frakes
cases,
these
appeal
assume,
purposes
due
be-
Payne
necessary
exercise of
care
everything
to tbe
did
they
killed. The
track
going upon the railroad
where
fore
testimony aside,
was no
testi-
there
Coley’s
direct
George
witness
best
stop,
and listen as
look
mony
men did
that tbe deceased
surrounding them
conditions
tbe circumstances
could under
entitled be-
plaintiffs were
the-crossing, and tbe
they approached
Payne
did all or
that Frakes
presumption
jury to tbe
fore tbe
things
of these
which reasonable
demanded
care
of them in the
circumstances,
say
jury
it was for the
whether or not this
presumption
was overturned
the facts and circumstances in evi
dence or was consistent
Memphis
therewith.
Railway
Street
Co. v.
Carroll,
The defendant’s motion for peremptory only instructions was not directed case,” tó “whole specifically but was also directed to each count of the declaration in each of the two cases. It there- necessary, fore in disposing assignments of the first and second error, to whether the refusing decide trial court erred peremp- *18 torily direct the to return a upon verdict defendant second, or statutory, count of the declaration.
As stated in preceding part opinion, negligence of this al- leged in the second count of the is declaration confined an to aver- ment that the requirements defendant failed to observe the of sub- 4 of section section Shan. Code, which subsection has been quoted. undisputed hereinbefore It is an fact that the automobile in Payne riding appeared Frakes and as an obstruction on the railroad locomotive, that, track front of the so the burden was prove precautions to had that it observed the re- the^ quired by circumstances, successfully statute in such and if it discharged recovery this burden there could be no under the second Code, count of the declaration. Shan. section 1576. long published opinions is established line of of our Su-
It preme Court, many which are cited in the briefs of counsel (1) case, duty upon agents no rests and servants of requirements company comply the railroad to with the of the stat- 4) (subsection appears until an obstruction the track ute moving near train, front of the or so to the track that it will train; (2) require impossibilities, struck the statute does not appears upon an in front and where obstruction track of the lo- suddenly striking thereof, comotive, or in distance so com- liability impossible, pliance precautions with such is no of the rail- pre- company predicated on the failure to observe the road could be (3) impossible, for want precautions, and it becomes scribed where statutory or if some of the time, precautions, all to observe given case, more precautions are, under the circumstances company railroad must first observe then the others, effectual than which, nature, are best calculated precautions from their those prevent accident. to will be most effective ‘ ’’ ‘ mandatory, imperative the statute It is likewise held that possible, when provisions its to an absolute obedience and demands impossibility to seemingly necessary not, whether colliding stop not excuse the train before with the obstruction does statutory non-observance so far such observ- precautions, possible. ance is engineer involved in' operating and fireman the locomotive
The proper this case testified that were on lookout ahead at their engine engineer right stations in the cab on the or west —the ("Wilson), side side. The fireman and the fireman on the left or east testimony, before according to his own did not see the automobile collision, for the in front him obstructed reason that the boiler crossing. proof undisputed his view of the The that the brakes shape” equipment “in first class other of the train were —“not headlight “burning brightly” flaw in it” —and the electric nightfall.) (the having collision occurred after engineer (Bain) testified, in he saw the au- substance, “straightened engine soon out” of the cut and the tomobile as his glare headlight crossing, and that the automobile fell on the crossing; attempted main at the that he was at on the track that time apply brakes, before the brakes took effect locomo- but he did sound the alarm automobile, and that tive struck automobile) (after anything prevent or do whistle he saw the stated. except attempt apply the brakes as above accident, everything it was engineer he did However, the stated that his command after he saw him do in time at possible for testimony engineer, as fol- quote "We from automobile. lows : down, coming, came
“Q. you got after you And when in front of came out through cut, this automobile say, *19 A. sir. your Yes, train? -Yes, A.
“Q. your brakes? sir. you And went after col- get your applied the “Q. you before could brakes But I have him, didn’t close on A. I that lision occurred? was. everything, and do probably, to think half, and a over a second all over. and it was say your you say speed did “Q. you I understood to —"What I "Well, near as can A. as running at time? that train fifty hour, probably miles an forty-five and it, come to between every second. put me 72 feet which would fifty an hour, miles my brakes, get I had to think you space what the Now, see impossible. stop. Gentlemen, it was try to make a your into automobile came “Q. after that possible, itWas that prevented that you stopped view, to have impossible. A. It was accident? Hendersonville, where “Q. came, approaching you Now, seat, Right look- engine? A. on the you sitting your were straight ahead. right ing ‘‘Q. your Where was ? fireman A. ITe was same, on the on opposite side, sitting on seat, too, straight looking right
ahead. Of course, I suppose don’t he it, could see because it came my from side, the fireman had no chance to see it.
“Q. Plow you far would say, Mr. Bain, you were from the crossing, at the time the your automobile view, came into your vision? A. Well, I as near as can come to it, about feet, anyhow. not over 200 feet, pretty It is hard for me to judge just exactly, my judgment. but is best of “Q. you,.which Were engine side of you sitting on? A. On right side, right-hand side. “Q. sitting You were on the engine same side approached? automobile A. Yes, sir.
“Q. you if State can, how fast running? that automobile was motion; Well, A. say. I couldn’t It seemed like it was in full it would say; maybe be hard for me eight or ten or fifteen hour, miles an I say moving couldn’t which. he But, full motion, me, it looked like to when I saw him.
“Q. only got You time, the vision that the train was running say? 150 feet, that, A. you Yes, about sir.
“Q. say You the automobile was then in full A. motion? Yes, sir, me, now, it, it looked to like I as near as can come to it. . . .
(cid:127) “Q. engine straightened you Your had out before there it, saw the automobile? A. I Yes, sir, that when saw when is just headlight right I straightened light out and the throwed the I gentlemen, Now, on that when saw the auto. you was, but, my how I exactly, judgment, far that couldn’t tell I I know,-that feet, best is about when saw the first ’’ automobile. Bain, engineer, On Mr. cross-examination, testified further subject, :(cid:127) the same as follows
“Q. you opt Cut, Then, thing is, the next came you Yes, track? A. sir. discovered this automobile on the moving?
“Q. you it, and was on the track when first saw It moving. yes, sir, A. Moving,
“Q. you say normal rate of Traveling, would was a at what my opinion. Yes, A. the best speed for an automobile. view, “Q. came into time that automobile And from the traveling, you to do didn’t time upon the track and have with it Yes, A. sir. anything else, I believe said?
“Q. right? Yes, A. sir. That *20 Oh, yes, sir, A. I you anything else? “Q. didn’t do So I it. minute saw my the after brakes went
617 “Q. know, I yon pnt but didn’t them on? A. before Bnt got I applied I it, the brake and hit done the ear.
“Q. you I that, yon, understand I understood the reason you you anything say didn’t do to do else, didn’t have time you anything- 'Well, going else? A. do a second what are half? and a
“Q. you you asking you asking I am what that, I am anything you else, or do did, do, didn’t reason didn’t the sir, I have Yes, was A. didn’t because didn’t have time? ’’ time. engineer, character, Whether the in cases of this did all he could ordinarily question for the prevent determination accident the although engineer may light evidence, in the all express opinion that did all that the time possible, he was 3 command, Railroad, Fitch v. accomplish at that result. his Cas., 676, 677. Shan. seen, engineer we testified that case,
In the instant have engine passed point of when his the curve he saw the automobile crossing, from the and he estimated distance north his 50 speed 200 train as feet, 150 and the of his at that time as per varied their estimates of dis- The witnesses miles hour. or the south end point of the at near tance from the curve James, J. C. civil witness but defendant’s cut to by him on that, an actual measurement engineer, testified made day pre- 450 in the testified, was feet. As stated he this distance was ceding speed rate at which the train opinion, part moving dispute. was a matter of traveling moves per 50 hour
A
miles
calculation shows that a
at
second;
per hour it moves
per
60 miles
at
at
the rate
feet
73%
at
per
moves
second;
65
hour it
per
at miles
rate of
feet
per
of 70 miles
hour
second,
the rate
per
of 95.3 feet
and at
rate
102.6
per
feet
second.
it moves at the rate of
engineer
do
within which to
available to the
period
of time
prevention of accidents
for the
prescribed
things
statute
saw,
or
which he
distance
depended on the
on railroads
seen,
automobile on. the
vigilance
have
due
could
exercise of
train),
(or
obstruction
as to be an
so near thereto
track
engineer
moving.
Was
which the train
speed
the rate
feet,
or was
150 to
of the distance as
correct
his estimate
it measured
in his statement
James correct
the witness
he testified that
when
Rutherford correct
feet,
was the
or
witness
engineer
Again, rails,”
198 feet?
about “six
maximum
hour as their
gave 50 miles an
when
correct
fireman
witnesses,
plaintiffs’
train, or were
speed estimate
*21
Gregory and Rutherford,
they
correct when
estimated
speed
the
of
the train
60
at
70
per
to miles
hour?
These
questions
are
of fact,
necessary'that
and it was
de-
be
termined in order to
engineer
ascertain whether the
saw the au-
tomobile on the track as soon as it could
been
have
seen
the
ex-
ercise of 'proper vigilance, and, if he did not fail of
duty
his
this
respect, whether he could have done more than lie did
prevent
to
accident,
the
further,
only
thing
whether the
which
engineer
the
says
did,
he
viz: attempt
apply
brakes, was,
to
the
under
cir-
the
cumstances,
thing
the
prevent
best calculated to
the collision.
may
It
also be observed that the
not, through
defendant could
the
negligent
of
engineer, deprive
conduct
its
of
power
itself
the
to
comply
requirements
with the
the statute,
of
successfully
and then
rely
impossibility
upon
statutory
the
of observance of
precau-
the
specific:
tions. To be more
if
approached
the
a much-used
public
(whereon
presence
persons
the
might
and vehicles
anticipated)
reasonably be
speed
engineer
rate
the
impossible
comply
knew would
it
requirements
with
render
the
the statute if an
appeared
obstruction
on the
the non-ob-
statutory precautions
servance of the
would not be excused.
Chattanooga Rapid
In
105
Walton,
Tenn., 415,
Transit Co. v.
421,
“Q. shortly you you wreck, I will ask if after the heard the engineer speed make run- a statement as to the at which he was ning? A. I did, yes, sir.
“Q. I you say will ask whether or not heard him running trying he was an hour and to make miles A. up Yes, sir, time? he statement.” made that credibility This constituted an attack Bain one of *22 recognized by law, the much-used modes and the to which credit Bain was entitled as a witness was therefore a matter within the province ruling jury determine, exclusive under the in supra. Wright, Frank v. opinion are overruling
We that the did not err in court de verdicts, motions for directed and that there is in fendant’s evidence jury plain the record which the verdicts in favor of could base provisions 1917, Chapter 36, tiffs. The do not militate Act against just Partridge, supra, p. Hines v. the conclusion stated. Page, v. 153 282 237; Railway Tenn., 84, 90, Central Tennessee Co. 376; W., Railway, Tenn., 642, 646, W., v. S. S. Crawford 892; Railway Zearing, App. R., Central Co. v. Tennessee Tenn. assignments first and second of error 458. defendant’s are overruled. may said, passing, that much of the evidence introduced
It respect,to with material support of its contention defendant inquiry herein, reason that the sole issues has been stated assignments of first and second error whether there was under the reasonably support plaintiffs’ tending any material evidence carefully We have ex- of action as stated in the declaration. cause merely opinion record, but it would extend this amined the entire greater serving purpose, useful length, much to a without in detail. state the evidence assignments remaining we shall not disposing
In error they assigned, will in which are but deal them follow the order convenient. which to us seems the order most thirty-first assignment of error follows: is as The defendant’s refusing motion of “The erred cause, jury special in the court direct the to return verdict is as follows: which motion was and
“ jury ‘The defendant asks that the be directed to return a special pronounce verdict in these causes and that the court judgment according thereon to the law. The is asked to find following on questions: and answer the “ ‘1. before, At time of the collision and as the train approached engineer, fireman or some was the other person on the lookout ahead? “ ‘Answer: “ ‘2. appear Did track or within strik- automobile suddenly impossible
ing distance of the train it was so engineer by using or on the locomotive employe other prevent every possible stop collision? means to the train and “ ‘Answer: “ signal good wigwag ‘3. con- Was came at the before the Pan American dition time the last train Hendersonville- station? passed from the north and “ ‘Answer: “ sounded crossing, was the whistle approaching ‘4. On rung engine point points north of the or or the bell on the reasonably highway of travelers on the crossing so as to warn speed at which the train approach of the train at the traveling ? “ ‘Answer:
“ Payne, stop, and Luther deceased, ‘5. Walter Frakes Did the point or they at a approached the look or listen as expect see hear reasonably points where could approaching? “ ‘Answer: “ Payne Luther deceased, Frakes and ‘6. Did the Walter *23 fifty crossing before the or feet of a of ten stop within distance pass over it? undertook to “ ‘Answer: “ wigwag signal collision, was the of ‘7. time the At the banner ringing and the is, the bell was properly, that operating working? wigwag “ ‘Answer: “ 644-5-6.)’ ‘(Trans;, pp. by the court de- was submitted motion above “The motion defendant’s had overruled after the court
fendant argument the case be- of before instructions peremptory for declined to motion and the jury. overruled The court fore the of fact on the- issues special verdict jury return a to direct the in court was action the in this above, and submitted, shown as ’ ’ error. In Casualty Robertson, the case of & Life Insurance v. Tenn. Co. App. 43, 53, R., court, plaintiff’s motion, trial the the on had di- jury “special verdict,” in of rected the to return the form an- a questions (as sought case), to swers in on and, appeal instant the judgment plaintiff special error from a on such in based ver- assigned dict, in the defendant the action of trial court this the held, authorities, a respect as error. This of court review the in that, subject, a applicable the absence of statute to was power of judge, within the of the trial in the exercise a sound dis- cretion, jury special verdict, petition direct to return a and a Supreme holding for certiorari to review was denied this Court.
The in of situation the case now before us is the converse judge that, in presented case, in the Robertson the trial de- supra, jury requested direct special clined to to return a verdict as insisting defendant, is now en- (in titled, jury directed, and right, a matter of to have the so as alternative) judge, with trial if it was a matter discretion has been in this instance. discretion abused subject bearing special verdicts, The Tennessee cases opinion many authorities, other are cited also .in repeat case, supra, we not here the citations the Robertson need present case con- opinion. briefs and discussion in that jurisdictions, from other additional citations of authorities tain some special respect law and able discussions counsel verdicts. 628, 630, Ap of Civil Turney Railroad, Hig., v. the Court
In suggested “advisability” speaking through Judge Higgins, peals, but, requiring special verdicts, after adopting practice suggestion made, cogent support thus stating reasons some foregoing from the said, not be understood there “it must the court law present in the state judges in Tennessee can the trial findings such as jurors special question return require without liberty still be jurors must It seems that the have indicated. we finding verdict; is, generally for general broad, to return a where the defendant; cases and doubtless plaintiff or findings in special he must return requests the judge trial general verdict.” right to return this of their them form an consideration attentive the authorities After review of opin counsel, we argument are briefs the excellent parties enabling statute, of an are in the absence that, ion- verdict. special right, demand entitled, a matter refusal of no error be, may there But, however this verdict, return, special an- jury to to direct the trial court *24 case, by in for defendant tendered questions swers to 622
reason that questions thus tendered did not cover and include all of the material and controverted issues of fact in the case. aIn Note found in 24 (N. L. R. A. S.), subject on the of “what special verdict contain,” must adjudged numerous eases are cited (on 6) page as supporting the statement of the Annotator that “the general, if not universal, rule is that it is essential special to a ver- dict that it contain all the 'upon facts law ultimate is to judgment arise and the of the court is to rest.”
In
& Casualty
Life
Insurance
v.Co. Robertson, supra, this court
(at
55)
said
page
that, “a special verdict
law
in
should,
order
support
a judgment, pass upon every material issue of fact made
by the pleadings;”
citing 2 Elliott’s
933;
General Practice, sec.
25
Ency.
Standard
of Procedure, pp. 944
22
981;
Ency.
and
Pleading & Practice, pp.
984;
L.,
875;
R. C.
Jones v.
p.
State,
We think it questions obvious that answers which defendant asked to jury have submitted necessarily would not have em- finding upon braced a all controverted material issues of fact nec- essary support judgment.- question The “ultimate” of fact in was, the ease proximate what was the cause of the collision which admittedly Payne? resulted the death of Frakes and Was it negligence alleged particulars defendant in the declaration, negligence or was it men, of the deceased or was it con- curring negligence of the men, the deceased or was merely collision part a fortuitous accident without fault on the of the defendant or the deceased men!
A finding negligence proximate.cause that the defendant’s was the injury alleged damages negligence in an action for is es- plaintiff’s recovery; appears unless sential to the that fact nec- essary undisputed from inference from the facts found or evidence. (N. S.), pp. A. See Note in L. R. and numerous cases there 21-24, questions digested. Moreover, to all of cited and answers tend- would have em- defendant for submission to the ered major finding upon part which the the issue to braced controversy directed, viz: sides of the is- evidence both part of -declaration wherein each sue made direct and alleged that “the death of her husband was a plaintiffs negligence carelessness and proximate result reckless agents employees running company, its defendant railroad highly speed, reckless rate operating said train traveling safety persons on said disregard of the lives total public cross- over and across said particular, highway, public highway said was so obscured person the view 'of ing where surroundings physical set hearing obstructed the- above so approaching train un- or hear said to see impossible out that *25 striking thereof, impossible til within distance and then to cross tracks, being by said approaching struck said without train.” no We find error in declining action of the trial court in to jury to special requested direct the return a defendant, verdict as assignment and defendant’s of error is 31st overruled. the. charge the conclusion main of the of the trial jury, At court to the special requests the defendant tendered to the number of court a instructions, given jury four of which to were re- and the The mainder refused. refusal of the court give were to each of requests separate assignment thus declined is made the basis of a defendant, which assignments of error will next be consid- However, opinion long) ered. would extend .(already this too length copy requests all to an unwarranted to herein these portions copy charge which, instances, to of the main also some point requests, hold to be we sufficient on the covered briefly shall, part, stating we for the with most content ourselves rulings reasons for our respect refusal of the re- quests by identifying request by the trial court, each the number exceptions it bears as- which the bill number of the relating of error signment to it.
Through assignment complains its fifth of error the defendant Request judge charge which the refusal of the its No. trial follows: reads charge gentlemen,
“I there further no evidence you, is you finding negligence base a upon in this could case company operation of against the in the matter of the railroad I wig-wag which was located this signal at any feature therefore, charge you not to consider further this case.” think failure of stated that we do have hereinbefore not "We operate alarm wigwag bell at the banner and the independent question an cause primarily afforded the time quoted requested instruction plaintiffs, and the above to the action carefully accurately although not as conveys thought, this gave to the However, judge trial might been. have as it worded the un- in connection with which, requested instructions two referred) precluded (to have which we heretofore proof disputed company the matter against the railroad negligence finding “a charged Requests signal.” thus wigwag operation Request No. 9 as follows: No. 22. 9 and No. you if from a gentlemen, find charge you, further “I - wig-wag .signal the evidence preponderance passing the time working condition proper train, which came Pan American south, prior last time, and after this automobile, and that with the in collision before the Pan American wigwag sig- this came nal repair became or in out such condition as that it would you operate, further find time that the between these two hour, trains was than less further find that one company agents defendant railroad nor officers or its they had notice of same, and, even if did. if notice, have reasonably expected repair signal could not this within time, negligence part then this would not constitute company wig-wag of the defendant in the maintenance of this ’’ signal. Request No. is in .words: these charge agent,
“I y.ou, gentlemen, further Ira Alex- shortly ander, testified in has case that after the time he off at five o’clock a train came this cross- duty south over went ing wig-wag signal operating bell and the and the thereon *26 you ringing, and, if find is evidence to the con- that there no trary, having impeached, manner and this in no been witness, agent accept of such true, then must as the statement regard this as established.” fact assignment
The 5th of error is overruled. effect, 2 Through Request defendant, No. the asked the court its for, peremptorily to return a verdict defendant to instruct the already This, declaration. we have under the second count of the complains re- held, been error. The would have through assignment error, and request its 6th of this fusal of this assignment overruled. is men', required 3 of the deceased Request No. relates the care to should, wigwag signal bell and alarm found that
the event collision. This operating at the time of the at the correctly, subject the law but this request, goes, far states as it charge assign- by given The 7th fully jury. to the covered Request 3,No. is of complains of refusal error, which ment of overruled. speed 4 excessive Request unusual and No. is that of
The substance recovery a unless it was basis a would not afford a fully injuries men. This was to the deceased of proximate cause assignment error, of which charge given. The 8th by the covered request, is overruled. of this complains of the refusal 1574, 4 provisions of section 5 of subsection No. Request states the up- appears an obstruction until further that Code, and states Shan. striking train, distance moving or in front of track company of the railroad upon employees duty rests thereof, no “striking defines dis- statute; properly also this comply with to purposes all of this that, for think We train.” tance charge general sufficiently in the instructed jury was case, the Request 12 (which given in defendant’s jury) No. Request respect to the matters No. 5, contained 9th as- signment error, complains refusal, of which of its is overruled.
Request purports compare No. positive neg- to define and testimony, apply comparison and to ative the definition and thus given testimony already, of witnesses in ease. We have this opinion, positive negative in this stated the distinction between pertinent case, testimony, as the facts of we not think this do requested correctly, this instruction states that distinction and was properly assignment refused. The 10th error which is based request, the refusal this is overruled.
Request proposition No. 7 failure on embodies comply part 1917, the driver of an with the Act of automobile 36, showing preponder- on him the burden a Chapter imposes precautions required evidence that has taken the ance he can him law to avert collision at such before he re- damages injuries resulting from a thereon. or collision cover harmony view of the construction and effect This is not with our 36, The 11th 1917, Chapter hereinbefore stated. as- Act request, signment complains of the and that of error refusal assignment is overruled. change phraseology) in. an ex-
Request (barring slight No. 8 is opinion Supreme Court paragraph cerpt from the last Tenn., Railway, S. v. of Stem Interurban in the case requires of trav- relating precautions W., 192, lay opinion Stem that the in the case except at railroad crossings, elers crossings positive, fixed says "to. look and listen ears look, says duty stop, "the etc.,” request duty, and the duty, crossings, positive, fixed etc.” at railroad listen for trains "stop” as used inclusion of word request was vitiated *27 listen holdings State, "the look and rule Under the this therein. ap- public a road duty of a traveler on of the proper measure” is the ordinary Hurt circumstances. railroad proaching a u.nder 437. reasonable 641, W., 205 S. Whether Tenn., 623, 140 Railroad, v. require that ease, would the given of a the circumstances care, under going the is a stop highway before the on traveler duty positive, fixed un- determine, and not jury to for the matter sufficiently correctly on instructed and jury The the law. der assignment error, complaining of the re- of 12th subject. The this is request, overruled. of this fusal refused. Request properly No. was charged. Request 9 was No. request proof, of the burden respect with the rule stating In law action and the stat- common the between discriminate does not give refusing additional to err in does not court utory action. where instructions are party, of a request upon the instructions as to correct one of count the declaration but incorrect applied when to count, another request and general is in terms. Railroad v. Acuff, Tenn., 26, 33, 20 W., S. 348. Request No. 10 also makes non-liability of the to depend entirely giving of warning timely signals approach of train, of the without ref- question erence liability to running for the train at high and rate of speed dangerous excessive crossing, over etc. The 13th assignment complains of error of the request, refusal of this and that assignment overruled.
Request 11No. performance states the rule that “the of impos- statutory sibilities in the precautions observaixce of required, is not person appears where a upon the track of an engine front or striking suddenly distance of a compliance train so precautions liability against is impossible, no the railroad com- pany predicated upon can be the failure to such precau- observe tions.” charge given We think the of the jury court to covered subject request fully this as the case demanded, facts assignment error, 14th based on refusal of this re- quest, is overruled.
Request charged. Request No. was No. 13 correctly states the general duty rule that it is the to reconcile the state- seemingly if, which are ments witnesses in conflict under the facts case, reasonably can do so, circumstances and then request apply specifically to rule undertakes this to the conflict operation non-operation between the witnesses as to the signals crossing*, automatic at the and also to the conflict between testimony testimony George Coley and the the witnesses tending Coley place to was not at a where he could have show approach example, etc. For seen the automobile it is ‘‘ I request: likewise, charge you that if And, said in there is a testimony seeming George Coley between of the witness conflict just subsequent just the wreck and prior as to movements to there- his to, plaintiff for the who testified with certain witnesses reference just seeing up Saveley’s a short while him store before Stewart, you may foreman, R. talking to section L. de- wreck did some other man such witnesses not mistake termine whether Coley, Coley talking not see did whom Stewart Coley together had been and for after wreck talking Stewart going village notify Stewart.” was to purpose quoted just 13 which Request No. we have was too part That proper for the would have been It argumentative. testimony particular suggest witnesses single out thus testimony of one rather witness than an- accepting reasons refusal assignment error, based on the of Re- 15th other. The overruled. quest No.
627 14 Request No. reads as follows: charge you, gentlemen,
“I further limit of there is no by in speed prescribed operation law for the trains railroad encourages The rail- the State of Tennessee. law allows companies service, quick, prompt, road furnish efficient long operate negligent so trains dis- do not their in regard rights especially rights of a of others and highway, the law itself with person on does not concern companies may operate speed which the railroad the rate their trains.” request law, we think it
This contains correct statement but sufficiently by general charge was covered wherein the court said: any speed law fix does not limit for trains and hence
“The speed being operated at which a- train is mere does not alone negligence. company, constitute The defendant railroad had right provided, doing so, op- make a certain schedule prudence.” erated its said with care and reasonable assignment complains error, through The 16th which defendant request, of the refusal of is overruled. this
Request respect 15, No. to the which on a rail- care travelers way required when approaching are to exercise railroad sufficiently hearing, was where there are obstructions to vision and Request charge No. covered the main and defendant’s assignment given jury; error, was and the 17th based Request 15, is the refusal of No. overruled. subject 15, Request No.
Request No. with the same deals sufficiently given. The charge supra, and was also covered 16, Request No. assignment of based on the refusal error, 18th is overruled. Request 21, No. substance, same as
Request 16is, No. given assignment request jury. to the 22nd which latter Request 16J4, over- complains refusal of No. is error, which ruled. “in of collision an instruction that cases
Request No. includes ab- presumption, railroad trains the travelers and between guilty of the traveler anything contrary, sence of proximate cause fault was prima facie his negligence hence already disposing held, of the 1st injury.” We have thus is not the stated doctrine assignments of error, 2nd error, complaining assignment The 19th law State. in this Request overruled. No. the refusal words: 18 is No. in these
Request ‘ ‘ though should that even you, gentlemen, charge I further have ease testified this witnesses certain find that train could not be seen or approaching heard a traveler railroad at Hendersonville from *29 west, 'the nevertheless plain if the physical beyond question in facts the case show that you true, this is accept testimony not then such cannot since tes- timony which physical contradicts facts and law cannot be ac- cepted evidence, question as in determining you and this look including all to the facts and pictures circumstances photographs which have been taken and in introduced evidence testimony before to determine or is whether not such con- trary physical facts, conditions, to the and circumstances sur- rounding case.” this general was, by rule of law which defendant request, this
seeking give charge to in to the is when jury, have sound facts, but, applied appropriate opinion, an in our state justify application.' facts of this did not its In this case case controversy (to request apply) involved which was intended to request physical plain of what terms “the facts of the existence testimony of case,” rather than a conflict between the witnesses physical physical facts, or facts es- on the one hand and admitted evidence, facts natural science and undisputed or tablished authoritatively be of common as to matters philosophy so settled hand. A is not general knowledge, photograph, on the other weight given “physical to be fact.” “The evidence of a conclusive variety of cir- depends, therefore, on a photograph as evidence to a conclusively establish the existence It does not cumstances. rep- weight a truthful and accurate represents. as objects it Its tests as those jury -to determine the same for the resentation is (2 weighed.” 3 on Evidence Jones is which all other evidence assignment error, through p. 2580. The 20th 1926), 1419', sec. Ed. Request 18, No. is over- complains refusal of which ruled. Requests num- subject 19 same Request No. relates to the the reason refused for properly 16, supra, and was 15 and bered charge and defendant’s sufficiently by'the main covered it was error, assignment jury. The 21st 21 given to the- Request No. 19, overruled. Request No. refusal on the based excep- the bill of appears 19 in Request No. duplicate of A literal (cid:127) assignment course, no additional but, of 20, No. Request tions charged. 22 21 and were Requests numbered thereon. is based error the defendant assignments of error 24th 23rd and Through its charge refusing give in to the court erred asserts sub- 24, respectively, Request No. special 23 Request No. special requests copied are into purported defendant, and two by mitted any does not show record respectively, but assignments, these copied requests such as those 24, or 23 numbered requests
629 assignments tbe error, into 23rd and 24th were submitted to the They exceptions, appear trial court. are bill of no record, grounds 32nd except where in the. and 33rd below, grounds for a new motion motion trial for a new purported give trial be on based the refusal the court to requests charge jury. such motion for new trial But a merely pleading, and cannot be looked to as evidence what State, 140 Tenn., 49, occurred trial. Sherman v. 125 S. 19, 209; W., Richmond, Foundry Carter, 493, v. etc., Tenn., 489, W., 240; Vanhoy, Tenn., 312, S. T. C. R. v. S. Co. W., appearing requests set Therefore, 225. as those it not assignments error, respectively, the 23rd 24th out' assignments court, are overruled. the trial these submitted assignments Through 25th, 26th, 27th, of error its 28th 29th part excerpts asserts five from that of the court’s the defendant charge relating first, count of law, or common the declaration may seen, In order that context are erroneous. *30 understood, parts assigned may be we will thus as error better charge excerpts ap- criticized part that thus copy by italicizing, pear, indicating’ alleged erroneous instructions as follows: Payne men, duty Luther and
“It of deceased care for prudence Walter Frakes to exercise reasonable right they upon safety, approached and entered their own as Rail- defendant, & Nashville way Louisville of and tracks of ordinarily prudent per- is such care Company, road that as and conditions under like circumstances sons would exercise tracks are a by the Railroad shown evidence in this case. as attempting danger persons or warning and hence of ordinary care, exercising must,, railroad track while to cross a pass any It there- may time. in mind that trains bear on- duty men look and listen for deceased fore track attempting to cross the coming crossing or trains before between If there were obstructions railroad. of the defendant as made it of the train such approach men and the deceased any if for reason train, and approaching see an difficult to train, not relieve this did approaching to hear an was difficult prudence duty reasonable care of to exercise them that an accident The mere the trains. and listen for look fact any presumption raise does not they were hilled occurred- degree care that exercise men that the deceased of failed indulges, law which the presumption There is a imposed by law- due care he law, that exercises every man observes that safety himself. (cid:127)
“This is a conclusive presumption. presumes Tbe law men exercised reasonable care in operating de- train, fendant’s the Pan-American, at the time of and before the accident, presumes and likewise the law the deceased men, Payne Frakes, exercised prudence reasonable care and their safety, approached own they upon and entered ¡for railroad tracks provides The statute defendant. track, persons operating an automobile a railroad before must pring it to stfiop, not less than ten nor more than full fifty provides the nearest rail. The statute feet from further that a persons’ to do so will not such common-law failure defeat right was, action in case an accident. It therefore duty the deceased men to observe this statute. failed If so, to do plaintiffs’ right reason it would not defeat action as above stated. placed
“As to signal, defendant, crossing- ‘wig-wag’ signal, and called a approach to warn travelers of the trains, charge you right I that the deceased men had the signal upon They not, rely certain extent. how- ever, relying altogether upon warranted for the reasons experience that common teaches that no device is in mechanical perfect duty, therefore, at all It was their times. condition they approached track, entered railroad to bear ordinary safety. exercising this in mind in care for their own preponderance all the evidence should “If find from agents com- servants railroad ordinary pany, knew, the exercise care could hdve exercising care travel- persons, ordinary while known Hendersonville, ap- hea/i' the ing could not see or east towards moving toward the road be- proach a train south frequently that said road was obstructions, certain cause of pre- public generally, by automobiles and the traveled anf if *31 sjiows agents and servants that ponderance all the evidence of- of train, known the Pan- operating passenger as defendant, its give w.arning the any alarm or American, sound of failed proximate was direct and approach the and such train’s failure consequent injury and death a/nd cause the accident liable dam- Payne wotdd be Frakes, then the and defendamt declaration, and would the ages the count under first exercising men were provided the deceased duty find, your to so they and approached time the prudence and care reasonable you find from a If railroad track. upon the should entered defendant railroad that the the evidence of all preponderance signal, called electric crossing a certain said installed at had rail- approach of signal, warn travelers wig-wag trains, road Payne that at the time the men, deceased and Frakes, approached crossing and entered track, signal the said electric was not in operation, pre- and if a ponderance of all the evidence shows that approach of the was obscured from depot, view cars, box stock loading pen things, and, and other on account of these ob- topography structions and the it was country, difficult approaching hear an train, agents that and servants knew or could person have known that because of said obstructions a could not see or hear an approaching train, seeing or that and hearing difficult, train, the said Pan-American, ap- proached passed crossing and said at a fast and reckless rate speed timely giving warning without reasonable and said approach, proximate train’s and result, a direct and Payne deceased killed, Luther and Walter Frakes were then the damages defendant would be.liable in under the first count of declaration, provided you find that the deceased men ex- ercised prudence approaching reasonable care and and enter- crossing. ing upon said contrary, proof
“On the if approach shows that persons train was not obscured from view of near and crossing, approaching person traveling while that a it, along ordinary by exercising the road toward the could points going south, proof care see a train and if at different riding in an au- Payne Frakes, shows deceased and while they exercising approached crossing, tomobile as or- dinary care, approaching could under such see the train and they circumstances, upon the railroad track drove recovery, your killed, it would be then can be no there duty to find for the defendant under the first of the dec- count in each case. laration charge you, approached “I the cross- the train further if seventy per ing sixty or miles hour speed at a if gave timely the whistle and said train sotmded
proof shows that tram could said warning, approached if exercising ordinary n while .have been seen the deceased men engine could have care, .glare headlight from. you pre- care, the exercise dioe been seen find men the deceased ponderance all the evidence failed crossing, then approached reasonable care as exercise the dec- count under you must first find for defendant thoiogh wig- your even this should be verdict laration, and operation. wag signal wig-wag sig- you charge find that the “I if further approached the time deceased operating at the nal was *32 and if preponderance of the evidence shows that careless- they ly negligently and act, crossing, entered and their said the any degree in yon proximate accident, was the canse of the should find for the in defendant each case under the first count of the declaration. you
“If preponderance should find from a of all the evidence agents the neg- and guilty that servants defendant were ligence, ordinary or a failure operating to exercise care passenger train of accident, the time of unless negligence by a preponderance such is shown of all the evi- proximately accident, dence to there no have caused the can be you recovery, agents if should find that defendant’s and guilty negligence pre- servants were find from a further ponderance all the evidence that deceased men were guilty negligence failing stop, look and for the to listen any degree approaching and their act in to train, contributed you proximate cause, the accident as the then must find for the defendant in each case under the first declaration. count you
“If should find from the evidence men deceased acquainted they passed had over it daily months, they was to for several and if knew it difficult approaching trains, or that were such see and hear conditions while ex- approaching could not be seen or heard trains duty ercising ordinary to in mind care, their bear then was exist, they such as knew conditions at said ordinary would exercise person exercise such care care as knowledge if conditions, knew that who had point, cross- approaching a certain train could be seen duty was ing points, other then it their and could not be seen at point might look at the where it use reasonable care to negligence and obscured, do so would constitute and a failure to any degree if it recovery under the first count, would defeat a proximate cause.” accident, as the contributed including in- charge quoted, above so obvious that the It seems assign- 25th, 27th, 28th 29'th 26th, criticized structions applicable to this our views of law ments, in accord with are assignments 2nd 1st and our case, expressed in discussion as unnecessary repeat there what is we error, ante, deem charge challenged, thus portions find error We no said. assignments overruled. are and these assignment the defendant says of error
Through 30th its follows: charging the erred working wig-wag signal you should find that “If preponderance track and upon men entered deceased stop, failed to men deceased shows that evidence they carelessly negligently upon the track when went signal light ringing burning', bell then working, and the charge I negligence that such the amount should reduce *33 damages.” recovery the to nominal part of the concluding paragraph
This instruction is the charge relating We 2nd, statutory to the of the declaration. count (with judge telling respect think the learned trial the erred statutory negligence) negligence to reduce the that “such should recovery In case T. damages.” amount of the to nominal the 59, C. R. R. 153 held that Tenn., 77, W., Co. v. 127 S. it was Binkley, give refusing request the not a similar in- trial court did err in a (at 86 jury. page struction to the In case opinion) said:
“By opinions well repeated published it is now this court precautions apply, statutory settled in a 'case where the they, have them, and which founded on the failure to observe injured any contributory negligence of the not observed, been damages only sus- party mitigating can have the-effect 676, W., 694, 13 14 88 S. Foster, Tenn., Railroad v. tained. Co. 919, 89 15 S. Tenn., W., W., 428; Co., 378, S. Patton v. Railroad 184; Tenn., 103 A., Artenberry Co., 12 L. R. v. Railroad Chattanooga 878; Rapid Walton, Co. v. W., Transit S. S. 737. Tenn., 419, W., that, also well settled
“And and others it the same cases is may negligence in contributory such gross such case however injured right party operate a be, it will not as bar Evidently, then, the measure of damages. recover some to recovery damages amount of the should, case, such a be the amount recovered mitigated that sustained, reduced or so considering degree or extent of demand, just will injured determina party. negligence of the contributory ques is a case be recovered in sum should tion what them under be submitted to jury, and should for the tion fact of such applicable to facts law proper instructions ’1 case. defendant, in favor present case, error this was But, other error We find no complain. it, therefore, cannot and of error, assignment 30th challenged instruction assignment is overruled. follows: assignment of error The defendant’s 32nd plaintiff, Gregory, witness for A. W. The court allowed ‘ ‘ defendant, follows: objection testify over “ wreck, some time after ‘Q. if, you after I will ask if gathered had there employes who wreck, the railroad anybody saw go down into open that and up that box where the is? battery “ object ‘MR. SEAY: I being subsequent that as to the ac- cident. ‘‘ ‘THE COURT: I will let question. him answer the “ ‘Exception for 154.) defendant.’ (Tr., p. “The above action of assigned the court is as error.” It is seen that assignment just quoted does not disclose testimony of Gregory. the witness It question shows a asked witness, exception by an counsel, ruling by defendant’s the court overruling the objection, and exception by an the defendant, and nothing more. The (151 815) rules of this court Tenn., p. and the Supreme (126 rules of 722) the- Tenn., p. Court governing assign- provide ments error alleged error’ the ad- “when rejection mission or evidence, quote the specification shall full substance of the rejected, evidence admitted or with citation of ’’ the record ruling where the may evidence or Manifestly be found. ‘‘ assignment 32nd only fails show the full substance of the *34 evidence,” any but evidence, fails to show assignment and that is overruled. assignment
The 33rd is as follows: “Assignment of Error No. XXXIII. permitted Rutherford,
“The court T. J. plaintiff, a witness testify objection to defendant, over the as follows: “ ‘Q. you traveling along opposite If are here the scales and depot along coming direction, in this in a towards the you running, car and the car a can see or hear train as comes it from pretty Gallatin? A. You can’t see it and is towards it hard to hear one. “ ques- object ‘MR. SEAY: I answer and the want to to that lay land, physical conditions, can tion. He state jury and let determine whether he can see or hear. ‘‘ ‘ objection. I THE COURT: overrule the “ 174.) ‘Exception p. (Tr., for defendant.’ assigned action as error.” above of the court is “The assignment legal question as the 33rd. 35th raises The same assignment 35th is in these words: The plaintiff, for the Brooks, B. L. a witness permitted “The objection defendant, as follows: testify to over the “ ‘ your coming house Q. is from Brooks, suppose a man Mr. crossing from approaching that going to Hendersonville A. the west side? railroad calls your is what the side, that Yes. “ I ask if he can automobile, or will ‘Q. Riding an approaching the cross- coming north from the a that is see ing? No, A. sir.. “ ‘BY MR. SEAY: objecting Your Honor us understands as haye question. objected ques- We heretofore similar a objec-
tion we waiving but do not to be understood our want as renewing repeat tion not I it and will further. not it “ sir; your ‘BY exception.' (Tr., THE COURT: Yes, p. note 267.) assigned above action of is error.” the court
“The given Whether train on a section of track can be seen from a given any point given point, highway, or from on a section of question concerning competent fact which it witnesses testify. familiar many with the situation involved In such cases point impossibility would be difficult to for a witness av- erage descriptive intelligence powers, thorough how no matter knowledge situation, his to describe conditions such as those (in testifying about which Rutherford their and Brooks tes- quoted assignments) way in these in such could timony fully sufficiently conditions to reach envision situation and an intelligent heard, conclusion as to a train could be seen or whether although knowledge on the the witness had definite and accurate sub- ject, long-continued reject acquired personal from To observation. testimony and important would often a wide avenue to close pole the truth of is the star case—the ascertainment support cited of the 33rd rules of No authorities are evidence. testimony 'thereby assignments and 35th of error. We think challenged assignments these are over- properly admitted, and ruled. . assignments error will considered to-
The 36th 34th and assignment follows: gether. 34th is as the ob- Akens, R. L. over permitted witness “The court testify wreck he saw jection that after the defendant, rails —that some of steel engine come carloads an there crossing; some down so cover came ring signal did bell and that bit after the wreck little *35 ring while he engine and did not down there when that came there. stood following objection: made the
“The “ your exclude Honor to to ask ‘BY SEAY: want MR. We the transpired after to what testimony this witness ground it there, on the wigwag to the with reference accident competent. material or accident, not subsequent to the is “ depend how might COURT: I think ‘BY THE Pan American when was this Where accident. long after the hearing this you speak of not time down train came wreck? signal? A. Where was the
“‘BY THE COURT: "Where American, was the Pan wrecked laying train? A. ground It was there, on the down biggest portion of it. “ ‘BY testimony go THE COURT: I will let the in. “ ‘Exception 215.) for the (Tr., pp. 214, defendant.’
“The assigned above action of the court is as error.” assignment And 36th in these words: permitted “The court B. L. Brooks, plaintiff, a witness for testify objection over the as follows: defendant, “ ‘Q. you.see any Did tráin of down kind come on that track? A. Yes, main sir. “ ‘Q. After A. I the wreck? did. “ ‘BY long THE COURT: How A. I Judge, afterward? just saying. would not positive be “ ‘BY Approximately? THE A. COURT: Because we was you I guess all fly there know and the time would faster than anything kind, on an occasion of wreck. “ ‘BY I exactly, approximately THE COURT: know but long say anywheres thirty was? A. I would from min- how hour. utes to an “ ‘BY COURT: Go ahead. THE “ Q. Well, ‘BY MR. it? A. BASS : What train was sort of probably loaded, engine well, was an I think it was had some — railings on it. “ ‘Q. A. Yes, Did on the main track? sir. it come down “ ‘Q. A. it come? How did close to see crossing. right It “ ‘Q. “ ‘Q. A. sir. Yes, Came from the north? ring when came down there?
Did that train that bell A. did not. It “ object- we Honor ‘BY MR. SEAY. Your understands are testimony from accident. too far the time ing to 270, (Tr., pp. your exception.’ “‘BY Note THE COURT: 272.) assigned as error.” court is -above action “The testimony copied into objection offered to the is seen that It accident” and “subsequent assignments was that it these accident.” far from time of “too subject, evi- conflicting there is testimony on the Although change alter nothing had occurred tending to show that dence signals between automatic the condition (as with rails the train loaded time the accident and timé of crossing. We are Brooks) came down to by Akens stated was admissible. consideration under testimony opinion that may re- accident or after the before of conditions “Evidence
637 eeived where also shown that the conditions testified to re- unchanged injuries main down to the occurrence of the or to the time to which the evidence relates. evidence is admissible So, existing as, conditions so short a time before after accident circumstances, under warrant, an inference of fact injuries same conditions existed when-the were received.” Railroad Lindamood, v. Tenn., 407, 412, W., Co. S. 112. The 34th assignments and 36th overruled. are assignments disposes except
This of all of error the 3rd and assignments, through 4th which defendant asserts verdict jury excessive, in each of the cases is and so excessive as to in- caprice passion, prejudice part jury. dicate on the thirty-five, Payne forty-six, Walter Frakes Luther was years age. employed Both were powder plant machinists at the week) (where earning per each was thirty-five dollars about good good sober, were industrious men habits and in health. (the Frakes) plaintiff Walter Frakes left a widow Mamie and three Payne surviving, (the plain- minor children and Luther left widow Payne) surviving. tiff Bettie and five minor children support The brief in sole reason offered in the the 3rd and 4th assignments of error men is the assertion deceased contributory negligence. guilty gross The decided has this adversely part and, stated in an earlier issue -as assume, purposes appeal we opinion, must Payne everything necessary did cases, that Frakes and these going upon of due care before railroad track where exercise distinguishes This the instant case were killed.' differentiates Admr., White, v. R. D. N., case of C. & St. L. etc. Railway from the assign (2d), 15 W. 4th Tenn., 407, et S. 1. 3rd and al., overruled. ments are affirmed, and judgments of the circuit are results that the
It against railroad accordingly will be entered the defendant judgment $15,000, Frakes for with interest favor of Mamie company in plaintiff and like- judgment below, and costs, from the date of the thereon Payne $15,000, Bettie plaintiff judgment in favor wise a judgment below, and for the date of the from with interest thereon adjudged against appeal will be the defend- costs of costs. The appeal surety on its bond. company railroad ant DeWitt, JJ., concur. Crownover
ON PETITION FOE REHEARING.
February 8, 1929. day On present a former opinion tbe term an filed judgment judgment affirming* entered court in each the trial *37 together in Sec- by the two cases which had been tried consent county brought ond in Circuit Court of Davidson and to this court style. transcript one and docketed under the here above judgments The the Louisville & thus affirmed were adverse to below, railroad Company, Nashville Railroad the defendant and the upon rulings company petition rehearing filed has for a assignments specified respect to certain of error this court petition. in the assignments purported of error to be
The 23rd and 24th charge upon refusing give in based the action of the trial in court request 24, jury special request special 23 and No. re No. assignments by These spectively, submitted below. overruled, any record did not show that were for the reason that the requests requests copied 23 or as those numbered 24, assignments were to the into the and 24th of'error submitted 23rd requests appeared nowhere in the record ex court; trial that such and merely pleading trial, in the motion for a cept new on the trial. of what occurred not be looked to as evidence could by cer- rehear, supported petition from appears It now counsel, and an affidavit of trial court tificate of the clerk tlie requests defendant, and special numbered the aforesaid cir- exceptions bill of were included in the respectively, by that court inadvertently the clerk of court, omitted cuit but court; that this for this making up transcript of the record hearing by petitioner before the counsel for was discovered omission filed; that assignments error were court and before in this a written into attorneys parties all entered thereupon the. stated, thereto, facts above reciting, preamble in a agreement follows: stipulating as and agreed hereby stipulated and THEREFORE, “NOW, it is erroneously having been 24,- Nos. 23 and requests special said correctly in defendant’s being set out aforesaid, but as omitted I, transcript, Volume appears in the a new trial motion for by reference in hereby incorporated they are 48-49, pages appear- may referred to as record, transcript to be and this is II record 683 Volume page ing rec- diminution of the way as if a in the same treated taken and duly the Clerk of the by certified suggested had been ord County.” Davidson Court of Circuit It further appears, from the affidavit of the clerk of this court ex hibited with petition rehear, stipu aforesaid written lation of counsel was by marked filed part the clerk as a of the rec ord in the placed cause and was transcript with the to the sent along- with the balance of argument the record after the hearing of the case.
A copy of stipulation petition set out to rehear, and in their reply petition attorneys defendants error admit the facts above objection stated and offer no to the treatment of the record if requests the aforesaid omitted supplied had been by duly transcript certified suggestion thereof on aof diminution of the record.
The aforesaid stipulation written found, of counsel was not its existence was unknown to the opinion court when our former prepared judgment filed and entered, although whole record in carefully the hands of the court was examined. Presum- ably was, accident, mislaid placed and lost after it was with the transcript the clerk. petition to rehear questions the case raised assignments error numbered granted treating said — *38 special 23 requests, 24, numbered properly incorporated as in bill exceptions having seasonably been tendered to and judge. refused the trial 3 Russell, App. R., Russell v. 232, Tenn. 236.
(a) assignment The 23rd in refusing is that the court erred to give charge in 23 jury special request to the No. submitted request defendant, which was follows: charge
“I you, gentlemen, further 1917 the Act of Assembly requires the General persons operating of Tennessee stop automobiles to 'come full to a before railroad tracks grade at a distance of less than ten feet nor more than rail such track or fifty feet from the nearest railroad tracks. duty you charge I that it was the of the deceased hus- further plaintiffs they if comply to with this law and failed bands gross negligence. so to do such failure constituted “I charge you any point points if within or this dis- could, by stopping 10 50 tance of or feet deceased men looking, listening approach or have discovered the duty their prevented to have collision, in time such do, if failed this would constitute so do and so to any any injuries they may for negligence recovery as to bar pre- from a sustained, you if find these to be the facts have plaintiff your against be ponderance verdict should company.” defendant railroad favor 640 requested
The instruction thus was, effect, in substance and if comply the deceased men requirements failed to with the Act of 1917, chapter jury against 36, the verdict should be plaintiffs' company. and in favor of the defendant railroad applied
As declaration, common-law count an directly instruction contrary would have been to the terms of section 3 of Act, provisions wherein it none of provided, “That any affecting this Act abridging way shall be or in construed as right recovery litigants damage may common-law suits that against pending brought company, be or hereafter railroad or carrier.” other common (284 N., Railway,
In v. C. & 153 Tenn., Crawford St. L. Legislature W., 892), S. it was held that the intended to confine the actions) application (in penal force, of the Act common-law its “to excluding negligence per the inference of se.” 23) (No. requested would have been er
The instruction likewise statutory In if the declaration. Ten applied roneous count of (282 Railway Page, Tenn., 84, W., S. nessee Central Co. v. 376), the court said: up Act of cannot set as al-
“The violation of the imposed duty together excusing imperative the railroad of the ’’ protect property. life and it to observe intended statutes assignment is overruled. The of error 23rd refusing (b) assignment 24th is that the erred ,24 special No. give request submitted charge request as follows: defendant, which you charge you plaintiffs that if find you “I further you on say so find both counts should must whether If find only if on one count. declaration, count, your you will report or both counts so for defendant either ’’ verdict. authority supporting their petitioner cite no Learned counsel proper to in- for the trial court been it would have contention that finding verdict, they must state that, in their their the jury struct special forth in declaration, in manner set count of on each the. 24, supra. request No. *39 2137, (2 Ed.), it is sec. said: 2'Thompson on Trials
In by statute, States, in some cases, unless restrained civil “In jury special issues require to find may party where either jury privilege interrogatories, it is special or answer general verdict.” finding than a any other to decline charged jury this sub- judge case, the trial In the instant , ject as follows: report “You must separate a you verdict in each ease, and may state under -which find, upon count counts, both general returning a verdict.” charge given thus to the jury is in accord with rule stated
in Thompson on Trials, as above and is in quoted, accord long-established and, practice so far as we know, uniform in this State.
In privilege Tennessee, jury “the finding any decline bther general than a statute;” verdict” is by not “restrained but, to the contrary, our impliedly recognize statutes seem to priv- this ilege jury. provided It by sec. 2969 (Shannon 4694) that, Code “if
any in a good, damages counts declaration are verdict a for entire applied shall be good to such counts'.” applied
This statute was in Railway the case Tennessee Central Co. v. Umenstetter, Tenn., 935, W., (a S. railroad-cross- ing collision case where there- a common-law count and stat- utory count), general and a sustained, although verdict was there proof was no to sustain the judge common-law count and the trial had charge submitted both upon counts to jury appropriate to the in facts averred each count. recognize say
We petitioner much that counsel for force petition and concerning desirability practice their brief through assignment for which contend their 24th error, but privilege gen- jury finding “the to decline other than verdict,” presented, is, opinion, eral in the here situation our too disregarded firmly practice imbedded this State be Hence, judge refusing did err in defend- trial courts. trial assignment request special the 24th is over- 24, ant’s No. error ruled.- connection, may
In be said there would seem to be right below its for the contention that waived room finding jury separately, on each its count demand- object form the verdict after it was rendered to the failure to suggestion judgment This is made was’entered. and before provides “any Code, which de- Shan. in view of section issues, different or the entering a verdict where there are fect objected be issues, shall before responsive is not verdict objection will considered waived.” entered, or"the judgment assign- respect the 24th action with do not rest our However, we quoted, grounds but last Code section upon the ment of error stated. previously rehear, and reverse our rul review also asks us to
Petitioner assignments error, on cer 5th, 32nd 21st and ings upon assignments 2nd of error. arising under the 1st tain'questions *40 attentively We petition considered reasons stated have' brief for opinion of counsel that our insistence former respects but, indicated, erroneous after re-examination of questions we with former are satisfied our conclusions involved, opinion therefor in our heretofore A and the reasons stated filed. possibly questions might further discussion of these be an elaboration but, views, substance, merely the former statement of our unnecessary. repetition, and therefore except 23rd respect to all and 24th as It results that error, signments petition to rehear is denied and dismissed. assignments judg- are 24th of error overruled and the 23rd and entered is reaffirmed. of this court heretofore ment DeWitt, JJ., concur. Crownover v. A. D. COMPANY RAILROAD NASHVILLE LOUISVILLE & A. HADLEY. D. HADLEY AND MRS. WIFE, May 3, 1930. Middle Section. Supreme Court, July 19, 1930.
Petition for Certiorari denied