348 S.W.2d 809 | Tenn. Ct. App. | 1961
This cause involves an appeal in error by Mrs. Carolyn B. Ori, widow of Eugene John Ori, deceased, also known as Gino Ori, who sues, in her capacity of administratrix, from a judgment of the Circuit Court of Shelby County, Tennessee, dismissing her
Plaintiff’s declaration is in three counts, — Count I being subdivided into six numbered sections or paragraphs. In addition, there are in that count several unnumbered paragraphs. Count I undertakes to combine in the same count a cause of action based on common law negligence of the defendant and a cause of action based on violation of the Statutory Precautions Act applicable to railway companies in Tennessee. Count II charges violation by defendant of a city ordinance fixing a speed limit for railroad engines and trains of 20 miles an hour within the City of Memphis. Count III seeks a recovery of $2,500 for destruction of Mr. Ori’s automobile. At the trial Judge Henderson of Division IV, Shelby County Circuit Court, by peremptory instruction, withdrew from consideration of the jury Count II of the declaration and consideration of whether or not the defendant had violated the Statutory Precautions Act, thus limiting consideration of plaintiff’s case to the common law cause of action. The jury returned a verdict in favor of the defendant. After a motion for new trial had been made and overruled, plaintiff perfected her appeal in the nature of a writ of error to this Court.
In this Court, plaintiff, as appellant, has filed four assignments of error. Although we have given careful consideration to all of these, we deem it unnecessary to copy them into this opinion, or to discuss them separately.
“Every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout ahead; and when any person, animal, or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down, and every possible means employéd to stop the train and prevent an accident.”
We think the trial judge ruled correctly in excluding from consideration of the jury the alleged violation of the Statutory Precautions Act. We reach this conclusion for three reasons, viz.:
1. Plaintiff’s declaration must be treated and considered as stating, exclusively, a common law cause of action.
2. The Statutory Precautions Act is not applicable to the facts proved in the instant case.
3. Even if the Statutory Precautions Act be considered as applicable, the undisputed evidence shows substantial compliance therewith by the defendant.
We will discuss these three reasons separately.
1. The common law and the statutory causes of action for personal injuries on a railroad crossing may both exist in the same case, but it is required that they shall each be presented in separate counts. Middle Term. R. Co. v. McMillan, 134 Tenn. 490, 184 S. W. 20. And it has been held that under a count charging common law negligence, evidence of noneompliance with the statute is inadmissible. Chesapeake & N. R. Co. v. Crews, 118 Tenn. 52, 99 S. W. 368. This Court in Little v. Nashville, C. &. St. L. Ry. Co., 39 Tenn. App. 130, 281 S. W. (2d) 284, held, on the authority of the above cited cases, that where a declaration contained four counts, one of which alleged common law negligence, two of which alleged violation of the Statutory Precautions Act, and one of
‘ ‘ The evidence makes it plain that the automobile appeared as an obstruction on the track too late to permit those on the engine to blow the whistle, apply the brakes, or otherwise try to avert the collision. Subsection (4) requires that the whistle be blown, the brakes applied, and every possible means be employed to stop the train when an ‘obstruction appears upon the road.’ As ruled in many decisions of this court, appearance on the road means appearance on the track in front of the moving train, or so near that the object will be struck by the moving train.*456 Tennessee Cent. R. Co. v. Binkley, 127 Tenn. 77, 153 S. W. 59; Chesapeake & N. Ry. v Crews, 118 Tenn. 52, 99 S. W. 368; Nashville C. & St. L. R. Co. v. Seaborn, 85 Tenn. 391, 4 S. W. 661.
“Until this automobile appeared, therefore, as an obstruction ‘upon the road,’ as those words are above defined, the duty of the engine men respecting the approaching automobile was not to be tested by subsection (4), but by the common law. There was no opportunity here for the observance of the precautions required by subsection (4) between the time the automobile appeared upon the track and the time it was struck. These two events were practically simultaneous.” Gaines v. Tennessee Cent. Ry. Co., 175 Tenn. 393, 135 S. W. (2d) 442.
In Little v. Nashville C. & St. L. Ry. Co., 39 Tenn. App. 130, 281 S. W. (2d) 284, it was held that the Statutory Precautions Act was not applicable, because the crossing at which the collision occurred had not been designated as is required by that Act. In the instant case the Statutory Precautions Act is not applicable because the accident here involved was a moving collision which is not covered by the provisions of that Act.
3. With reference to whether or not there was substantial compliance on the part of the defendant with the provisions of Subsection 4, we quote from the opinion of the learned trial judge, as follows:
‘ ‘ There are some cases, as I recall, which hold that it is impossible for the railroad company to comply with the Statutory Precautions where a line of box cars are being pushed ahead of an engine, if it is not a switching operation. It is very obvious that the*457 railroad company, in backing a line of cars with an agent on tbe rear, is not in a position to comply with the statutory precautions in having a lookout ahead and applying the brakes, and doing everything humanly possible.
“Now, the situation here, according to the proof, is entirely different for this reason. In my opinion, the railroad company’s proof shows that if subsection (4) was applicable, that they could comply with the statutory requirements. f '
“The proof shows that this lead car was equipped with air brakes that had complete control of the movements of that train; that it had a whistle on it which could be operated; that it had a man on the front of this car; and I don’t think there is any doubt about that.
“One or two witnesses said they didn’t see him, but the uncontradicted proof that the railroad company had a man on the front end of that car in the position equivalent with that of the engineer, if the engine were on the front pulling a string of cars. That he had complete control of the movement of the train, and therefore was in a position to comply with subsection 4 of the Act if an object appeared upon the track by applying his brakes, which he did, and sounding the whistle at intervals.
“Sol am of the opinion, after reading and analyzing those cases, when they back a line of cars — box cars — and somebody is standing up there, they are not in a position to comply with those provisions; but, in this case, it is the equivalent to a train. That lead car is equivalent to the engine pulling the cars.*458 That man had charge of the train. He was in a position to see. He had a light on it, and, as I said, he had complete control of the brakes on that train.
“Now, the Court is of the opinion that the uncon-tradicted proof in this case, while the engine was at the rear of this cut of cars consisting of five pull-mans and chair cars, that the lead car, being in the control of a man with all necessary equipment, was in a position to comply with all the statutory requirements.
“Proof in this case says that the car was not traveling very fast — around 20 miles an hour. The uncontradicted proof shows that the train was not moving at an excessive rate of speed. I think the testimony shows around 15 miles per hour. It is very evident. I don’t see how you can get an inference to the contrary by reason of the fact when this impact occurred he stopped the train within one car length — 65 feet. That lead car was right at that crossing when the automobile was in close proximity to that crossing, having slowed down, indicating that the driver of that car was going to stop or yield the right of way.
“I don’t see how reasonable minds can differ to the effect that this car, when it suddenly started up and veered on the tracks in front of this lead car so suddenly that it was humanly impossible, under the circumstances, to have brought that train to a stop before colliding with the automobile.
“So, the Court is of the opinion that subsection 4, under the uncontradicted proof in this case, is out of this law suit and has no application at all. ’ ’
“The argument that the statute does not apply because the engine was in the rear of the train instead of in front, and that consequently a lookout ahead on the locomotive is dispensed with, proceeds upon the erroneous assumption that, if the railroad company, for convenience or otherwise, takes the engine from the front end of the train, and uses it in the rear, or at some other place in the train, a lookout is dispensed with in front. This is manifest when we look to the object of the statute. It contemplates an engine in front, with perfect headlight, a bell to be rung, and machinery for blowing the whistle, reversing the engine, and taking* the precautions indicated in the special and general terms of the statute, including, of course, a place for the lookout to be, and an engineer, fireman, or some other person, always there as a lookout. Now, in case the engine had been in front, and its headlight or its machinery for alarm or stopping taken away from it, or the*460 lookout taken off of it, it would not be denied that the company was liable; but because the company had taken not one but all of these things away, the argument is that it escapes statutory liability. Thus stated, it seems perfectly manifest that the proposition is erroneous. Putting it in other words, it is that although the railroad company could not take away any one of these and avoid liability, it could take them all away and do so. That the whole includes all of its parts is a proposition not more axiomatic than that all [of] the parts are necessary to make up the whole.
“If, therefore, observance of the statute as a whole consists in ‘keeping an engineer, fireman, or other person upon the locomotive always upon the lookout ahead,’ in order that objects appearing upon the track may be discovered and the other precautions taken for which the statute provides, it follows that all these things are necessary to be severally done in order that the whole requirement be complied with.” Little Rock & M. Railway Co. v. Wilson, 90 Tenn. 275-276, 16 S. W. 614.
In the instant case, the defendant had not dispensed with any of the requirements of the Statutory Precautions Act, unless it be held, as a matter of law, that the lookout on the leading car, who had complete control of the train, constitutes violation of the Statutory Precautions Act because he was not on the locomotive, and this, even though he had complete control of the train, and all other provisions of the Statutory Precautions Act were being complied with. We agree with the ruling of the trial judge, and hold that the facts of the instant case consti
For the reasons stated above, it is our opinion that the learned trial judge ruled correctly when he withdrew from consideration of the jury all questions concerning alleged violation by defendant of the Statutory Precautions Act, and in particular, Subsection 4 of Section 2628, Code of 1932 (Section 65-1208, T. C. A.), and that the verdict of the jury forecloses all other questions in favor of the defendant. It results that the judgment of the lower court dismissing plaintiff’s cause of action will be affirmed.
The costs of the cause will be adjudged against the plaintiff and her sureties on the appeal bond and on the cost bond given in the lower court.