Opinion
No. 39487.
April 18, 1955.
1. Death — truck-locomotive crossing collision — in State of Tennessee — damages — instructions — loss of society and companionship — jury not to consider.
In action for wrongful death of driver of truck struck by train in Tennessee, under Tennessee law, instructions that jury could not consider as an element of damages loss of society and companionship which decedent's children suffered by reason of his death, but could only consider pecuniary value of deceased's life, his funeral expenses, and property loss, were proper.
2. Negligence — same — same — Tennessee law controls.
Where collision occurred in State of Tennessee, action was controlled by Tennessee statutes, and construction placed upon such statutes by courts of Tennessee.
3. Railroads — statutory warning signals — lookout — construction — Tennessee statutes.
Tennessee statutes requiring sounding of locomotive's whistle and bell, and lookout ahead on part of train crew means that every Railroad company failing to observe requirements of such precautionary statutes shall be responsible for all damages to persons or property occasioned by or resulting from any accident or collision that may occur, unless railroad, on which burden rests, shows that the precautions were observed, and that accident was unavoidable, but contributory negligence of the person injured does not excuse a strict compliance with the statute, and when impossibility and unavoidableness arise out of the default of railroad, liability still exists. Secs. 2628(3, 4), 2629, 2630, William's Code of Tennessee.
4. Railroads — evidence — Tennessee statutory warning signals — lookout — applicable.
Where truck driven by decedent struck locomotive near driving wheels and cylinder, and where locomotive and truck arrived at the crossing almost simultaneously, or approximately at same time, under facts of case, Tennessee statutes requiring sounding of locomotive's whistle and bell, and lookout ahead on part of train crew were applicable in determining railroad's liability. Secs. 2628(3, 4), 2629, 2630, Williams's Code of Tennessee.
5. Railroads — Tennessee statutory warning signals — conflicting evidence.
In such case, where testimony as to point where whistle of train was first sounded was in conflict, question of whether railroad had complied with statute requiring whistle and bell of train to be sounded one mile from corporate limits of town was for jury. Sec. 2628(3), Williams's Code of Tennessee.
6. Railroads — Tennessee statutory warning signals — lookout — statutory construction.
Sounding of whistle and bell on train that struck truck driven by decedent in Tennessee at a distance of one mile from depot was not a compliance with statute requiring signals be sounded at a distance of one mile from corporate limits of a town. Sec. 2628(3), Williams's Code of Tennessee.
7. Railroads — Tennessee lookout statute — compliance by train crew — jury question.
Where engineer of train which struck truck admitted that he could have seen truck if he had been watching, but did not see truck until train reached crossing, because he was busy watching signals, question of whether engineer complied with statute requiring lookout by train crew when approaching crossing was for jury. Sec. 2628(4), Williams's Code of Tennessee.
8. Trial — truck-locomotive crossing collision — railroad's peremptory instruction properly denied — fact issue — jury question.
Under facts of case on issues presented, question of liability was for jury, and Trial Court properly denied railroad's request for a peremptory instruction.
9. Trial — directed verdict — introduction of evidence after overruling of motion for.
By introducing evidence after their motion for a directed verdict, railroad and its engineer waived any right to complain of Trial Court's overruling such motion.
10. Appeal — damages — evidence — relationship between deceased and his children — not reversible error — in view of instructions.
Court erred in permitting son of decedent to testify with regard to relationship between deceased and his children, but since Court instructed jury that they were not permitted to make any award for loss of society and companionship, such error was not sufficient for reversal.
11. Negligence — Tennessee law — contributory negligence — not a defense — jury may apply — in reduction of damages.
Trial Court did not err in refusing railroad's request for instruction authorizing jury to deny recovery in event proof showed decedent had been guilty of contributory negligence, where under Tennessee law, contributory negligence is not a defense, although a jury may apply contributory negligence in reduction of the damages.
12. Trial — general verdict — Trial Court — entered judgment against proper defendants.
In action by Administrator for death of driver of truck struck by train in Tennessee, where no issue was submitted to jury as to liability of railroad which owned right-of-way and tracks, railroad which had trackage rights and operated train did not object to general verdict for plaintiff, and all evidence in case and instructions to jury made it clear that intention of jury was to render verdict against railroad operating train and its engineer, Court properly entered judgment against railroad operating train and its engineer.
13. Trial — general verdict — judgments — Court to give effect — to jury's intention.
The evidence and all the proceedings in the case may be looked at in order to ascertain the intention of the jury, and when it is discovered, it is the duty of the Court to give it effect.
Headnotes as approved by Holmes, J.
APPEAL from the Circuit Court of Alcorn County; RAYMOND T. JARVIS, Judge.
Ely B. Mitchell, Corinth, for appellants.
I. Statute law of State of Tennessee covering the case. Sec. 1574, Shannon's Code of Tenn.; Sec. 2628, Williams's Code of Tenn.
II. Decisions of Tennessee Courts under Section 1574, Shannon's Code of Tennessee of 1917. Alabama Great So. Ry. Co. v. Brookshire, 166 F.2d 278; Calloway v. Christison, 148 F.2d 303; Chesapeake N. Ry. Co. v. Crews, 118 Tenn. 52, 99 S.W. 368; Cincinnati N.O. T.P. Ry. Co. v. Garrett, 25 Tenn. App. 173, 154 S.W.2d 435; Cincinnati v. N.C. St. L.R. Co., 132 Tenn. 477, 178 S.W. 1115; Gaines v. Tennessee Cent. R.R. Co., 175 Tenn. 389, 135 S.W.2d 441; Graves v. Ry. Co., 126 Tenn. 148, 148 S.W. 239; Meadows v. N.C. St. L.R. Co., 177 Tenn. 273, 148 S.W.2d 371; N.C. St. L. Ry. Co. v. Barnes, 177 Tenn. 690, 152 S.W.2d 1023; N.C. St. L. Ry. Co. v. Campbell, 8 Tenn. Civ. App. 190; N.C. St. L. Ry. Co. v. Parks, 136 Tenn. 367, 189 S.W. 695; N.C. St. L. Ry. Co. v. Perry, 13 Tenn. App. 268; N.C. St. L. Ry. Co. v. Seaborn, 85 Tenn. 391, 4 S.W. 661; Phillips-Duttorff Mfg. Co. v. Alexander, 15 Tenn. App. 618; Railroad v. McDonough, 97 Tenn. 255, 37 S.W. 15; Snyder v. Missouri Pacific R. Co., 183 Tenn. 471, 192 S.W.2d 1008; Southern Ry. Co. v. Noah, 180 Tenn. 532, 176 S.W.2d 826; Southern Ry. Co. v. Whalley, 170 Tenn. 668, 98 S.W.2d 1061; Stem v. Interurban R. Co., 142 Tenn. 494, 221 S.W. 192; Strickland v. L. N.R.R. Co., 2 Tenn. App. 141; Tennessee Cent. Ry. Co. v. Ledbetter, 159 Tenn. 404, 19 S.W.2d 258; Todd v. Ry. Co., 135 Tenn. 92, 185 S.W. 62.
III. Tennessee law governs trial of case. Chicago, Etc., R. Co. v. Doyle, 60 Miss. 977; D'Antoni v. Teche Lines, Inc., 163 Miss. 668, 143 So. 415; Fleming v. Grimes, 142 Miss. 522, 107 So. 420; N.C. St. L. Ry. Co. v. Foster (Tenn.), 10 Lea 351; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 So. 53; Young v. Masci, 289 U.S. 253, 77 L.Ed. 1158; 11 Am. Jur., Conflict of Laws, Sec. 182 p. 490.
IV. Crossing not marked by statutory signal. Alabama Great So. Ry. Co. v. Brookshire, supra; Cincinnati N.O. T.P. Ry. Co. v. Garrett, supra; Graves v. Railroad Co., 18 Cates 165; Nashville Chattanooga R. Co. v. Smith, 33 Tenn. App. 45, 228 S.W.2d 495; Railroad v. Crews, 10 Cates 52; Railroad v. Elder, 26 C.C.A. 615, 81 Fed. 791; Railroad v. McDonough, 13 Pickle 225; Railroad v. Simpson, 65 C.C.A. 563, 131 Fed. 705; Southern Ry. Co. v. Matthews, 79 F.2d 52; Southern Ry. Co. v. Noah, supra; Southern Ry. Co. v. Simpson, 149 Tenn. 458, 261 S.W. 677; Tennessee Cent. R.R. Co. v. Page, 163 Tenn. 84, 282 S.W. 376; Sec. 2628, Williams's Code of Tenn.
V. Railroad company had legal right to lease tracks. Secs. 1507, 1509, Shannon's Code of Tenn.
VI. Lessor not liable for negligence of lessee and its employee. Arrowsmith v. Nashville Decatur R.R. Co. (Tenn.), 57 Fed. 165; Byrne v. Kansas City, Etc., Ry., 61 Fed. 605; Ditchett v. Railroad Co., 67 N.Y. 425; Estes v. State, 152 Miss. 814, 120 So. 444; H. Weston Lbr. Co. v. Hibbens, 182 Miss. 669, 182 So. 115; Miller v. Railroad Co., 125 N.Y. 118, 26 N.E. 35; Wood's Railway Law, Sec. 490.
VII. Truck not on obstruction on the railroad track under the Tennessee law. Curtis v. L. N.R.R. Co., 232 Fed. 109; Holder v. Railroad Co., 11 Lea 176; Railroad Co. v. Carroll, 6 Heis. 347; Railroad Co. v. Reidmond, 11 Lea 205; Railroad v. Anthony, 1 Lea 516; Railroad v. Binkley, 19 Cates 62; Railroad v. Crews, supra; Railroad v. Egerton, 14 Pickle 541; Railroad v. Selcer, 7 Lea 559; Railroad v. Womack, 96 C.C.A. 559, 173 Fed. 752; Rogers v. Railroad Co., 69 C.C.A. 321, 136 Fed. 573; Tennessee Cent. R.R. Co. v. Gleaves, 2 Tenn. App. 549.
VIII. Precaution signals not required where car ran into side of engine or train. McCampbell v. Central of Ga. R.R. Co. (Tenn.), 253 S.W.2d 763; Railroad v. Simpson, 22 Thompson 458.
IX. Caution signals given as required by statute.
X. Railroad not liable where signals were given as required by statute. Railroad Co. v. Brock, 5 Thompson 477; Railroad Co. v. Cruze, 10 Cates 62; Railroad Co. v. Finley, 14 Cates 127; Railroad Co. v. Hawkes, 87 C.C.A. 300, 160 Fed. 348; Railroad Co. v. Parker, 12 Heis. 50; Rapid Transit Co. v. Walton, 21 Pickle 423; Sec. 1576, Shannon's Code of Tenn.
XI. Reversible errors of Lower Court. Byrne v. Railroad, 9 C.C.A. 668; Cincinnati N.O. T.P. Ry. Co. v. Garrett, supra; Collins v. Railroad Co., 9 Heis. 481; Crawford v. N.C. St. L. Ry. Co. (Tenn.), 284 S.W. 892; Davidson-Benedict Co. v. Severson, 1 Cates 587; Fore v. Alabama Vicksburg R.R. Co., 87 Miss. 211, 39 So. 493; Fowlkes v. Railroad, 9 Heis. 829; Gas Electric Co. v. Letson, 68 C.C.A. 452, 135 Fed. 969; Haley v. Railroad, 7 Bax. 239; Hines v. Lockhart (Miss.), 105 So. 449; Holder v. Railroad, supra; Hunt v. Y. M.V.R.R. Co., 140 Tenn. 623; Klein v. I.C.R.R. Co., 4 Tenn. App. 563; L. N.R. Co. v. Anderson, 159 Tenn. 55, 15 S.W.2d 753; McCampbell v. Central of Ga. Ry. Co., supra; Mobile Ohio R.R. Co. v. Johnson, 157 Miss. 266, 126 So. 827 and 165 Miss. 397, 141 So. 581; Moran v. Railroad, 2 Bax. 379; N.C. St. L. Ry. Co. v. Perry, supra; Newton v. Homochitto Lbr. Co., 162 Miss. 20, 138 So. 564; Patrick v. Carr, 50 Miss. 199; Patton v. Railroad, 5 Pickle 374; Railroad Co. v. Reidmond, supra; Railroad Co. v. St. Johns, 5 Snead 526; Railroad Co. v. Wright, 6 Thompson 79; Railroad v. Anthony, supra; Railroad v. Burke, 6 Cald. 45; Railroad v. Foster, 4 Pickle 687; Railroad v. Gurley, 12 Lea 53; Railroad v. Howard, 6 Pickle 144; Railroad v. Leazer, 11 Cates 14; Railroad v. Mitchell, 11 Heis. 407; Railroad v. Nowlin, 1 Lea 525; Railroad v. Prince, 2 Heis. 587; Railroad v. Selcer, supra; Railroad v. Smith, 9 Lea 470; Railroad v. Stevens, 9 Heis. 18; Railroad v. Stone, 7 Heis. 468; Railroad v. Sutton, 179 Fed. 471; Railroad v. Wyrick, 15 Pickle 510; Railway Light Co. v. Davis, 3 Tenn. Civ. App. 522; Rogers v. Railroad Co., supra; Southern Ry. Co. v. Simpson, supra; Southern Ry. Co. v. Whalley, supra; Stuber v. Railroad, 5 Cates 314; Tennessee Cent. R.R. Co. v. Page, supra; Tennessee Cent. Ry. Co. v. Ledbetter, supra; Trafford v. Express Co., 8 Lea 105; Wadsworth v. Telegraph Co., 2 Pickle 722; Secs. 1576, 4029(4), Shannon's Code of Tenn.; Sec. 2628(4), Williams's Code of Tenn.; 53 Am. Jur., Sec. 1094 p. 758; 64 C.J., Sec. 894 p. 1094.
Orma R. Smith, Corinth, for appellee.
I. The evidence in this case shows that the appellants violated the statutory precautions provided for in Subsection (3) and one of the precautions provided for in Subsection (4) of Section 2628, Williams's Code of Tennessee, Annotated, 1934, in that, in approaching the town of Selmer, neither the whistle nor bell of the locomotive was sounded a mile from the corporate limits, and the engineer did not keep a lookout ahead, as the train was passing through the town. If such be the case, Section 2629 of the said Code places upon the appellants the responsibility for all damages sustained by appellee. Section 2630 places the burden of proof on appellants to show that it observed the statutory requirements. A violation of the statute results in an absolute liability, and this is true, although the contributory negligence of the decedent was the proximate cause of the accident; and the non-observance of the statutory precautions, on the part of the appellants, was not the proximate cause. Alexander v. Hancock, 174 Miss. 482, 164 So. 772, 165 So. 126; M.L. Virden Lbr. Co. v. Stone, 203 Miss. 251, 33 So.2d 841.
II. The statutory law. Secs. 2628(3, 4), 2629-30, Williams's Code of Tenn.
III. The case law of Tennessee.
A. Cases construing Subsection (3). Graves v. Railroad Co., 126 Tenn. 148, 148 S.W. 239; Illinois Cent. R.R. Co. v. Sigler, 122 F.2d 279; Railroad Co. v. Howard, 90 Tenn. 144, 19 S.W. 116; Railroad v. Davis, 104 Tenn. 442, 58 S.W. 296; Railroad v. Gardner, 69 Tenn. 688, 1 Lea 688; Tennessee Ry. Co. v. Vanhoy, 143 Tenn. 312, 226 S.W. 225.
B. Cases construing Subsection (4). Alabama Great Southern Ry. Co. v. Brookshire, 166 F.2d 278, 1 A.L.R. 2d 612; Calloway v. Christison, 148 F.2d 303; Casteel v. Southern Ry. Co., 187 Tenn. 586, 216 S.W.2d 321; Louisville N.R.R. Co. v. Tucker, 211 F.2d 325; Majestic v. L. N.R.R. Co., 147 F.2d 621; Nashville Chattanooga R.R. Co. v. Anthony, 69 Tenn. (1 Lea) 516; Railroad Co. v. Ross, 2 Tenn. App. 384; Railroad v. White, 73 Tenn. 540, 5 Lea 540.
IV. The rule in the case of Southern Railway Co. v. Simpson, 149 Tenn. 458, 261 S.W. 677, does not apply in this case where the locomotive and truck arrived at the point of impact at practically the same time. Donald v. Gulf, M. O.R.R. Co., 220 Miss. 714, 71 So.2d 776; Gulf, M. N.R.R. Co. v. Addkinson, 189 Miss. 301, 194 So. 593; Gulf, M. N.R.R. Co. v. Holifield, 152 Miss. 674, 120 So. 750; Gulf, M. N.R.R. Co. v. Kennard, 164 Miss. 380, 145 So. 110; McCampbell v. Central of Ga. Ry. Co., 194 Tenn. 594, 253 S.W.2d 763; Southern Ry. Co. v. Brubeck, 6 Tenn. App. 493; Southern Ry. Co. v. Buskill, 10 Tenn. App. 1; Southern Ry. Co. v. Simpson, 149 Tenn. 458, 261 S.W. 677; Spilman v. Gulf S.I.R.R. Co., 173 Miss. 725, 163 So. 445; Summerford v. Illinois Cent. R.R. Co. (Miss.), 196 So. 264; Tennessee Cent. Ry. Co. v. Page, 153 Tenn. (26 Thomp.) 84, 282 S.W. 376.
V. Even though contributory negligence does not bar a recovery based on statutory rights of action, under Tennessee law, the jury should consider the same in mitigation of damages otherwise recoverable. Tennessee Cent. Ry. Co. v. Page, supra.
VI. The elements of damages recoverage under Tennessee law in a case such as the one at bar, does not include loss of society and companionship, but does include the pecuniary value of decedent's life, his funeral expenses, and property loss. Bennett v. United States, 94 F. Supp. 6; Davidson-Benedict Co. v. Severson, 109 Tenn. 572, 72 S.W. 967, 1 Cates 572; Dixie Greyhound Lines v. Woodall, 188 F.2d 535; Louisville N.R.R. Co. v. Tucker, supra.
VII. While all matters relating to the right of action of appellee are governed by the lex loci delicti, all matters relating purely to the remedy or procedure are governed by the lex fori. D'Antoni v. Teche Lines, 163 Miss. 668, 143 So. 415; 11 Am. Jur., Conflict of Laws, Sec. 186 p. 498.
VIII. Appellants made a motion, at the close of appellee's case, to exclude the evidence introduced in his behalf and direct a verdict for the appellants. This motion was overruled. The appellants then proceeded to introduce their evidence. By taking this step, they waived the right to object to the Court's ruling on the motion. Dixie Drive-It-Yourself System Jackson Co. v. Matthews, 212 Miss. 190, 54 So.2d 263; Frisby v. Grayson, 216 Miss. 753, 63 So.2d 96.
IX. Appellants requested the Court to grant an instruction to the jury which quoted Section 2628 of the Tennessee Code in its entirety as the law applicable to the case. The Court correctly refused to grant the instruction: (1) because the suit did not involve all subsections of the statute, (2) there were other statutes which applied to the case, and (3) this is not the correct method to be used by the Court in instructing the jury. Chadwick v. Bush, 174 Miss. 75, 163 So. 823; Graham v. Brummett, 182 Miss. 580, 181 So. 721; Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426.
X. The Lower Court overruled appellants' objection to the testimony offered by appellee as to the relationship existing between the decedent and his adult children. Later, at appellee's request, the Court instructed the jury to disregard this evidence. Any error committed by the Court in overruling appellants' objection was thereby cured. Appellants did not request any further action by the Court, and did not ask for a mistrial. Alabama V. Ry. Co. v. Lowe, 73 Miss. 203, 19 So. 96; Carlisle v. City of Laurel, 56 Miss. 410, 124 So. 786; Davis v. Shemper, 210 Miss. 201, 50 So.2d 143.
XI. Appellee was permitted to amend his declaration to eliminate therefrom any demand for damages for loss of society and companionship, and to insert a demand for damages for the pecuniary value of the life of the decedent. This was done over appellants' objection. Such was proper in order that the declaration might be made to conform to the proof as introduced. Darby Lbr. Co. v. Hill, 209 Miss. 816, 48 So.2d 484; Owens v. Conlee, 218 Miss. 55, 65 So.2d 435; Secs. 1511-12, Code 1942.
XII. By the instructions to the jury, given at the request of the parties, the Trial Judge submitted to them for their decision only two issues on liability. One issue was whether the Illinois Central Railroad Company had provided, through its engineer, Sam King, the lookout required by the statute; the other, whether the engineer performed the statutory duty with reference to sounding the whistle or bell at a distance of one mile from the corporate limits of the town. In both of these instructions the jury was instructed, in the event they found in favor of plaintiff, on the issue, to return a verdict against defendants, Illinois Central Railroad Company and Sam King. The liability of defendant, Gulf, Mobile Ohio Railroad Company was not submitted. The jury, in response to the issues so presented to them for decision, returned the following verdict: "We, the jury, find for plaintiff in the sum of $2,000." It was upon this verdict that judgment was entered by the Trial Judge against the defendants, Illinois Central Railroad Company, and Sam King, but not against the defendant, Gulf, Mobile Ohio Railroad Company. This was the proper judgment to be entered on the verdict returned. Henry v. Halsey, 13 Miss. 573, 5 Sm. M. 573; Johns v. State, 78 Miss. 663, 29 So. 401; Montgomery v. Tillotson, 1 How. 215; Thornton v. Lucas (Miss.), 29 So. 400.
XIII. Appellants and defendant, Gulf, Mobile Ohio Railroad Company, were sued as joint tortfeasors. Under the law, the charge was that they were equally liable, and in the event of liability, there could not have been any apportionment or contribution between them. Appellants are not, therefore, entitled to complain that a judgment was not entered against the Gulf, Mobile Ohio Railroad Company. Only the appellee could object. Cohen v. Noel, 165 Tenn. 600, 56 S.W.2d 744; Davis v. Broad St. Garage, 191 Tenn. 320, 232 S.W.2d 355; Holland v. Nashville Ry. Light Co., 6 Tenn. 68; Teche Lines, Inc. v. Pope, 175 Miss. 393, 166 So. 539.
XIV. In determining whether the Trial Court should have sustained the motion for a directed verdict at the close of all the evidence, every fact favorable to appellee which the evidence establishes, either directly or by reasonable inference, must be considered as proved. Planters Wholesale Groc. v. Kincade, 210 Miss. 712, 50 So.2d 578.
XV. The Lower Court was correct in its refusal to set aside the verdict of the jury, on appellants' motion, based on the insufficiency of evidence. This can only be done when the verdict is against the clear preponderance or great weight of the evidence, and such was not the case here. Forbes v. City of Durant, 209 Miss. 246, 46 So.2d 551; Johns-Mansville Products Corp. v. Cather, 208 Miss. 268, 44 So.2d 405.
XVI. The witnesses, Hurst, Scott, Kirk, and Miller, did not hear the whistle or bell of the train until it was within the city limits, and each of them was in a position to hear the whistle or bell if sounded a mile from the corporate limits. The fact that they did not is probative evidence that the signal was not given. Tennessee Cent. Ry. Co. v. Page, supra.
XVII. The only error committed by the Trial Court was the one where the Trial Judge overruled appellants' objection to appellee's proof as to the relationship existing between the decedent and his children. Since it is apparent that the error was not prejudicial and was later corrected, it was a harmless one for which a reversal will not be ordered. Nashville Chattanooga R.R. Co. v. Anthony, supra; Paramount Fire Ins. Co. v. Anderson, 211 Miss. 372, 51 So.2d 763; Pearson v. Kendrick, 75 Miss. 416, 23 So. 290; Southern Ry. Co. v. Matthews, 29 F.2d 52; Sec. 2628(4), Williams's Code of Tenn.
APPELLANTS IN REPLY.
I. Station signals were given according to law. Foley v. N.Y.C. H.R.R. Co., 197 N.Y. 430, 90 N.E. 1116; Mobile Ohio R.R. Co. v. Johnson, 157 Miss. 266, 126 So. 827; 23 C.J. 42-45; 10 R.C.L. 1011; Vol. III, Elliott on Railroads (3rd ed.), pp. 523-24; 9 Ency. Ev. 867; Jones on Evidence (Civil Cases, 3rd ed.), Sec. 898; Vol. II, Moore on Facts, Secs. 1188-89.
II. The truck did not appear as an obstruction on the road. Sec. 2628(4), Williams's Code of Tenn.
III. Lookout statute was complied with. Alabama Great Southern R.R. Co. v. Brookshire, 166 F.2d 278; Gaines v. Tennessee Cent. R.R. Co., 175 Tenn. 389, 135 S.W.2d 441; Louisville N.R.R. Co. v. Tucker, 211 F.2d 325; Majestic v. L. N.R.R. Co., 147 Fed. 2d 621; Nashville Chattanooga R.R. Co. v. Anthony, 69 Tenn. 516, 520; Union Traction Co. v. Todd, 16 Tenn. App. 200, 64 S.E.2d 26; Sec. 2628(4), Williams's Code of Tenn.
IV. The Supreme Court should do what the Lower Court should have done. Railroad Co. v. Lovejoy, 11 Thompson 492, 503, 511.
This suit was brought in the Circuit Court of Alcorn County by Jamie D. Perkins, administrator of the estate of W.C. Swinea, deceased, against the Gulf, Mobile and Ohio Railroad Company, the Illinois Central Railroad Company, and Sam King, the engineer operating the engine of the Illinois Central Railroad Company on the occasion here involved. The suit sought to recover damages for the alleged wrongful death of the said W.C. Swinea, deceased, resulting from a collision between a Dodge pickup truck in which the deceased was riding and a through freight train operated by the Illinois Central Railroad Company.
The collision occurred on April 5, 1952, about 10:30 o'clock in the morning, in the Town of Selmer, Tennessee, at a crossing where the tracks of the Gulf, Mobile and Ohio Railroad Company cross at right angles Highways 45 and 65. The highway forms the main street of the town. The railroad tracks going over the crossing consist of three. The tracks run in a north and south direction and the highway runs in an east and west direction, and on the occasion of the collision, the deceased was approaching the crossing from the west in his truck. Approaching from the west, one first crosses a track designated in the record as Track No. 3, and proceeding east, then crosses a second track, designated in the record as track No. 2, and continuing east, then crosses a third track, or the main line track, designated in the record as track No. 1. The distance from the center of track No. 1 to track No. 2 is 16 feet. The center of track No. 3 is 53 feet from the center of track No. 2. The total distance from the center of the main line track, or track No. 1, to the center of track No. 3 is 69 feet. The rails are 4 feet 8 inches apart. Tracks Nos. 2 and 3 are house tracks, or passing tracks. As the result of a collision at this crossing, the deceased, W.C. Swinea, was killed and his truck was practically demolished. The impact of the collision between the truck and the train was so great that the motor was knocked out of the truck and hurled through the air, and the deceased was likewise knocked from his truck and instantly killed.
The declaration predicated liability upon the alleged violation of common law duties by the defendants, and also the alleged violation of statutory duties by the defendants, Illinois Central Railroad Company and Sam King, its engineer. As violations of common law duties, it was alleged that the Gulf, Mobile and Ohio Railroad Company permitted the crossing to become a dangerous crossing in that it permitted cars to be parked along the side tracks obstructing the view of those in vehicular traffic, and in addition thereto, the signal lights were inadequate to properly notify vehicular traffic of trains approaching the crossing. By arrangement between the Gulf, Mobile and Ohio Railroad Company and the Illinois Central Railroad Company, the latter was granted trackage rights, pursuant to which it operated its through freight trains over the main track which traversed the crossing in question. The declaration charged that the Illinois Central Railroad Company and its engineer knew, or should have known, that the crossing was a dangerous crossing due to the fact that railroad cars were parked along the side tracks so as to obstruct the view of approaching trains on the main line track, and due to the fact that signal lights were inadequate to properly notify vehicular traffic, and notwithstanding this knowledge, the Illinois Central Railroad Company and its engineer, Sam King, ran its train over and across said crossing at a highly reckless and dangerous rate of speed. The declaration further charged the violation by the said Illinois Central Railroad Company and its engineer, Sam King, of statutory duties under certain precautionary statutes of the State of Tennessee.
The suit was brought in the name of the administrator of the deceased for the use and benefit of six adult children who survived the deceased, and sought damages for the death of the deceased and for the destruction of the deceased's pickup truck, and for his funeral expenses. His funeral expenses, according to the undisputed evidence, amounted to $467.75. The value of the truck, according to the undisputed evidence, was between $350 and $400. After the wreck, the administrator sold the salvage from the truck for $15.00.
Upon the trial of the case and at the close of the evidence for the plaintiff, the defendants made a motion to exclude the evidence and direct a verdict for the defendants. This motion was overruled and the defendants then introduced evidence in their own behalf. Upon the conclusion of all of the evidence, the appellant, over the objection of the defendants, was permitted to amend his declaration so as to delete therefrom a demand for damages for the loss of society and companionship, and to insert therein a demand for damages for the pecuniary value of the life of the deceased. At the close of all of the evidence, the case was submitted to the jury solely on the question as to whether or not the defendants, Illinois Central Railrod Company and Sam King, had complied with the precautionary statutes of Tennessee with reference to the sounding of the whistle and bell by trains coming into a town or city and with reference to whether or not the said defendants had maintained a proper lookout in approaching the crossing as required by the statutes of Tennessee. No issue was submitted to the jury which authorized the jury to return a verdict against the Gulf, Mobile and Ohio Railroad Company. The only defendants as against whom the jury was authorized under the evidence and the instructions of the court to return a verdict were the defendants, Illinois Central Railroad Company and Sam King. The verdict returned by the jury was as follows: "We the jury find for the plaintiff and assess his damages at $2,000." On this verdict the court entered a judgment against the Illinois Central Railroad Company and Sam King. No judgment was entered against Gulf, Mobile and Ohio Railroad Company, and there is no appeal by the Gulf, Mobile and Ohio Railroad Company. From the judgment entered, the defendants, Illinois Central Railroad Company and Sam King, prosecute this appeal.
(Hn 1) The deceased was, at the time of his death, 74 years old and in good health. He had a life expectancy of 7.23 years. He left surviving him six adult children. He was engaged in farming and had an income from his farm of $2,000 per year. The elements of damages which the jury was authorized to take into consideration in the event it found for the plaintiff were the pecuniary value of deceased's life, his funeral expenses, and property loss. The jury was expressly instructed that it could not consider as an element of damages the loss of society and companionship which the children of the deceased suffered by reason of his death. The elements of damages so authorized under the court's instructions were proper. Bennett v. U.S., 94 F. Supp. 6; Dixie Greyhound Lines v. Woodall, 188 F.2d 535.
(Hn 2) The collision here involved, having occurred in Tennessee, this suit is controlled by the statutes of Tennessee, and the construction of these statutes as placed upon them by the courts of Tennessee. Turner v. Southern Ry. Co., 112 Miss. 359, 73 So. 62.
This bring into review the following statutes as set forth in Williams' Tennessee Code, Anno., (1934).
Section 2628, Subsection (3): "On approaching a city or town, the bell or whistle shall be sounded when the train is at the distance of one mile, and at short intervals till it reaches its depot or station; and on leaving a town or city, the bell or whistle shall be sounded when the train starts, and at intervals till it has left the corporate limits."
Section 2628, Subsection (4): "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 employed to stop the train and prevent an accident."
Section 2629: "Every railroad company that fails to observe the above precautions, or cause them to be observed by its agents and servants, shall be responsible for all damages to person or property occasioned by, or resulting from, any accident or collision that may occur."
Section 2630: "No railroad company that observes, or causes to be observed, these precautions shall be responsible for any damage done to person or property on its road. The burden of proof that it has observed said precautions shall be upon the company."
Subsection (3) of said Section 2628 providing that on approaching a city or town the bell or whistle shall be sounded when the train is at the distance of one mile, and at short intervals until it reaches the depot or station, has been construed by the Tennessee courts to mean a distance of one mile from the corporate limits of the town and not a distance of one mile from the depot or station. Illinois Central Railroad Company v. Davis, 104 Tenn. 442, 58 S.W. 296; Webb v. Railroad Company, 88 Tenn. 124, 12 S.W. 28.
(Hn 3) The construction placed upon the foregoing precautionary statutes of Tennessee by the Supreme Court of Tennessee is reviewed in the case of Majestic v. Louisville N.R. Co., (C.C.A. 6th), 147 F.2d 621, as follows:
"The Tennessee Supreme Court has construed the statute to mean that every railroad company failing to observe its requirements shall be responsible for all damages to persons or property occasioned by or resulting from any accident or collision that may occur, unless the railroad shows that the precautions are observed. Louisville N.R. v. Gardner, 69 Tenn. 690, 1 Lea. 690. This construction must be followed even if hardship results or absurdity ensues because the language of the statute is explicit and certain and can be given no other meaning and contributory negligence of the person injured does not excuse a strict compliance with the statute. However, the onus of the statute is lifted when the railroad shows it had done all that it was required to do thereunder, and that the accident was unavoidable. But, when impossibility and unavoidableness arise out of the default of the railroad, liability still exists.
"The statute does not brook speculation or conjecture, even of the slightest, of the agents in charge of a train as to the probability or possibility of the effect of neglecting to observe any of the precautions contained therein. It demands an absolute obedience to its provisions whether they seem necessary or not. Chattanooga Rapid Transit Company v. Walton, 105 Tenn. 415, 21 Pick. 415, 58 S.W. 737.
"The duties of those in charge of a train to observe the requirements of the statute are not confined to the very time the accident occurs. They commence when the obstruction `appears' upon the road and `the road' in contemplation of the statute, is not merely what is called strictly the roadbed or track, but also includes the public approaches thereto and it is the duty of the lookout to view the whole road within the orbit of his vision. Nashville Chattanooga R. Co. v. Anthony, 69 Tenn. 516, 520, 1 Lea. 516, 520."
The appellee bases his right of recovery upon a claimed violation of the foregoing precautionary statutes of Tennessee. On the other hand, the appellants contend, first, that they were guilty of no violation of any of the precautionary statutes of Tennessee, and, second, that the evidence shows that the truck ran into the train on the occasion in question, and that, therefore, appellants are free from liability under the authority of Southern Ry. Co. v. Simpson, (Supreme Court of Tennessee) 261 S.W. 677, and McCampbell v. Central of Georgia Ry. Co. (Supreme Court of Tennessee), 253 S.W.2d 763, holding that a railroad company is free from liability where a motorist runs into the train while the train is occupying the crossing.
The vital issue on this appeal on the question of the liability of the appellants is whether or not the statutes in question are applicable to the appellants under the facts of this case, and, if applicable, whether or not the appellants, on the occasion in question, gave the requisite precautionary signals. This makes pertinent a brief statement of the evidence bearing upon this issue.
We consider first the testimony from which it may be determined whether the facts of the case at bar are such as to make applicable to the appellants the precautionary statutes in question, and to impose upon them the duty of compliance therewith on the occasion of the collision. R.T. Hurst, a witness for the plaintiff, testified that he was sitting in the Twentieth Century Cafe, located on the north side of the highway and on the west side of the railroad tracks and about 150 feet from track No. 3; that he was sitting where he could look out the vestibule window looking east; that the door was partly ajar; that he saw the deceased approaching the crossing and heard the rumble of the train but did not hear the train whistle; that when he saw the deceased, the latter was about 75 feet from the west track and was traveling in the direction of the crossing at the rate of 20 to 30 miles an hour; that when he saw the deceased approaching the crossing, he got up and went on the outside of the cafe and then heard the train blow for the first time; that the deceased was then about 20 feet from the west track; that the deceased continued to approach the crossing, and on reaching the crossing, struck the back of the engine with the front of his truck; that the train was running 50 to 75 miles per hour and travelled approximately 1,200 feet after the collision. Dallas Kirk, a witness for the defendants, testified that he saw the deceased just before the accident and that at that time the deceased was close to the main line track and was traveling about 15 miles an hour, and did not slow down, and that when the deceased reached the crossing, his truck struck the big drive wheel of the engine. James Alton Scott, a witness for the defendants, testified that when he first saw the deceased, he was between the main line and the second track and that he did not stop or slow down and when he reached the crossing, he struck the engine at one of the drive wheels. B.L. Robinson, a witness for the defendants, testified that the truck was not on the crossing when the engine got to the crossing, but that it would be hard for him to explain whether the truck struck the engine or the engine struck the truck. Sam King, the engineer for the Illinois Central Railroad Company, and one of the defendants, who was riding in the engine and operating the same and in a better position to observe the location of the engine and the truck with respect to the crossing at the time of the collision, testified that his engine was on the crossing when he first saw the pickup truck, and that the truck was then coming right against the engine, about 10 or 15 feet from the engine, and was traveling about 20 to 25 miles an hour; that the train was traveling 35 to 40 miles per hour; that the truck struck the pilot beam and the cylinder of the engine right at the front end, and that he applied his emergency brakes as soon as he saw the truck. C.P. Hill, the brakeman on the train and a witness for the defendants, testified that he was riding on the engine with the engineer and with W.G. Hyde, the fireman, and that his first awareness of anything happening was when he heard the engineer say, "we are going to hit him."
It is manifest from the foregoing testimony that the truck and the engine arrived at the crossing at approximately the same time. Thus the facts of the case at bar distinguish it from the case of Southern Ry. Co. v. Simpson, supra, and McCampbell v. Central of Ga. Ry. Co., supra. The decision in each of these cases was based upon a showing that the automobile ran into the side of the train at a time when the train was actually occupying the crossing. In the Simpson case, the proof for the railroad company tended to show that the automobile ran into the ninth car of the train. In the McCampbell case, the proof for the railroad company showed that the automobile ran into a freight car. Based upon the showing that the train was actually occupying the crossing, and that the automobile ran into the side of the train, the Court held in these cases that the precautionary statutes here under review were not applicable. In the Simpson case, however, the court made the following significant statement: "Whether subsection (3) applies in any case where the collision or accident does not happen to an object in front of the train, we need not decide."
Further, in the case of Southern Ry. Co. v. Koger, (C.C.A. 6th) 219 F. 702, the Court said: "Defendants insist, however, that subdivision (3) applies to the case only where the person collided with appears as an obstruction upon the track ahead of the train; in other words, to a striking by the front of the train. This question is important, for we scarcely think that the evidence justified a finding that the decedent appeared as an obstruction on the track, or within striking distance ahead of the train. We agree with the learned district judge that the statute should not be so narrowly construed. It is true that the majority of the cases in which the statute has been applied have arisen either under subdivision (2) or subdivision (4); and, quite naturally, under subdivision (2) the person struck has usually appeared as an obstruction upon the track or within striking distance ahead of the train. But the construction contended for would require the interpolation in both subdivisions (2) and (3) of the clause (found in subdivision (4)), `when any person, animal, or other obstruction appears upon the road.'"
(Hn 4) In view of the proof in the case at bar from which it manifestly appears that the truck of the deceased and the locomotive of the train arrived at the crossing almost simultaneously, or approximately at the same time, we are of the opinion that the Simpson case and the McCampbell case are not controlling of the case at bar, and that the precautionary statutes heretofore referred to were applicable to the defendants, Illinois Central Railroad Company and its engineer, Sam King, and imposed upon them the duty of compliance therewith on the occasion of the collision in question.
(Hn 5) The trial court submitted to the jury for their determination the question whether the appellants sounded the whistle and the bell at least one mile before reaching the corporate limits of the Town of Selmer, as required by subsection (3) of Section 2628 of the Tennessee Code. We are of the opinion that the court was amply warranted under the evidence in submitting this question for the determination of the jury. Dallas Kirk, James Alton Scott, and L.W. Miller, witnesses for the defendants, testified that they heard the train first sound the whistle when it was about at the Gulf Plant, which the proof shows without dispute is located in the city limits of Selmer, north of the highway. B.L. Robinson, a witness for the defendants, testified that he heard the train blow before it got in sight, but that he was unable to say where the train was when he first heard it blowing. W.G. Hyde, a witness for the defendants, testified that the whistle was first blown at approximately one mile north of the depot, and like testimony was given by C.P. Hill, a witness for the defendants. T.W. McBride, a witness for the defendants, testified that he heard the whistle of the train but could not tell where the train was at that time. Sam King, the engineer and one of the defendants, and the man who actually sounded the whistle and the bell, testified that he first sounded the signals when the train was one-half mile north of the Brown Shoe Factory. It is undisputed in the evidence that the Brown Shoe Factory is located north of the highway and within the city limits. (Hn 6) The sounding of the whistle and the bell at a distance of one mile north of the depot, as testified by the witnesses W.G. Hyde and C.P. Hill, was not a compliance with subsection (3), since that section as construed by the Supreme Court of Tennessee requires that the signals be sounded a distance of one mile from the corporate limits of the town and not a distance of one mile from the depot or station. Illinois Central Railroad Co. v. Davis, supra; Webb v. Railroad Company, supra.
(Hn 7) The other witnesses, with the exception of the defendant Sam King, were indefinite in their testimony as to where the train was when the signals were first sounded. The defendant, Sam King, however, who actually sounded the signals, located the train at the time at a point one-half mile north of the Brown Shoe Factory, which is located within the city limits, and from this testimony, it inescapably appears that the signals were not sounded one mile from the corporate limits of the town. At any rate, in view of this testimony, we think it can not be successfully maintained that the trial court erred in submitting to the jury for its determination the question whether the appellants on the occasion in question complied with subsection (3) of the statute.
The question next arises whether the appellants complied with subsection (4) of the statute, providing that "every railroad company shall keep the engineer, fireman, or some other person upon the locomotive, always upon the lookout; 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 employed to stop the train and prevent an accident." In the case of Majestic v. L. N.R. Co. (C.C.A. 6th), 147 F.2d 621, the word `obstruction" as used in the statute was construed to mean that which may obstruct and injure the free and safe passage of the train or that which may receive an injury or damage if run over by the train, as in the case of a person on the road, or near enough to the railroad to be within striking distance of a train. It was further said in the Majestic case that the duties of those in charge of a train to observe the requirements of the statute are not confined to the very time the accident occurs, but that such duties commence when the obstruction appears upon the road, and that the road, in contemplation of the statute, is not merely what is called the roadbed or track but also includes the approaches thereto and that it is the duty of the lookout to view the whole road within the orbit of his vision. The engineer testified that he was keeping his eyes on the track ahead on which the train was running. He admits that he did not see the truck of the deceased until his engine came upon the crossing, at which time, the truck was 10 or 15 feet from the engine. C.P. Hill, a witness for the defendants, who was riding on the engine with the engineer, heard the engineer exclaim immediately before the collision, "we are going to hit him," at which time the engineer applied his emergency brakes. Mr. Hill further testified that as the train approached the crossing there was a clear view from the engine to the crossing for a distance of 150 feet, and that the engineer could have seen Mr. Swinea if he had been looking, but that the engineer also had to watch the semiphore board and the block signals. That the train was traveling at a fast rate of speed is indicated by the undisputed testimony that, with the emergency brakes applied, it ran 1,200 feet after the collision.
In view of this testimony, we think that the trial court was amply warranted in submitting to the jury the question whether or not the appellants complied with subsection (4) of the statute. According to Mr. Hill, the view ahead was visible for 150 feet before the train reached the crossing. The jury was well warranted in finding that if the engineer had been keeping the proper lookout as required by the statute, viewing the crossing ahead and the approaches thereto, all within the orbit or range of his vision, he would have observed the deceased approaching the crossing at a time when the engineer was at a distance of 150 feet from the crossing, and that had he then immediately applied his emergency brake as the statute requires, the collision might have been avoided.
In the case of Southern Ry. Co. v. Cooper (C.C.A. 6th), 245 F. 857, the Court said: "While plaintiff's decedent was walking on the railroad track, he was struck and killed by a train approaching from behind. His administrator recovered in the court below judgment for the money value of his life. Upon motion for a new trial, the District Judge thought that all questions of error in the charge regarding the precise rules of liability were made immaterial by the conceded fact that the engineer, if he had been looking ahead, could and would have seen the deceased 150 feet away; that, in that event, the engineer could have blown the whistle, and the decedent could have stepped out of danger; but that the engineer did not look and did not sound the whistle. The District Judge thought that these facts demonstrated a clear liability, under the Tennessee Precautions Act (subsection 4, Sec. 1574, Shannon's Code). With this conclusion, we agree."
(Hn 8) It follows from what we have heretofore said that we are of the opinion that the trial court committed no error in denying the request of the appellants for a peremptory instruction.
(Hn 9) The appellants complain that the trial court erred in overruling their motion at the close of the appellee's evidence to exclude the evidence and direct a verdict for appellants. It is well settled under the decisions of this Court that the introduction of evidence by the appellants, after the rejection of their motion, constituted a waiver of any right of the appellants to complain of the trial court's ruling. Dixie Drive-It-Yourself System v. Matthews, 212 Miss. 190, 54 So.2d 263; Frisby v. Grayson, 216 Miss. 753, 63 So.2d 96.
(Hn 10) The appellants further assign as error that the trial court erred in permitting the witness W.E. Swinea, son of the deceased, to testify with regard to the relationship between the deceased and his children. It is true that under the decisions of the Tennessee courts a recovery can not be had for loss of society and companionship as an element of damages, and the objection to the aforesaid testimony should have been sustained. However, the court instructed the jury that they were not permitted to make any award for loss of society and companionship, hence we are of the opinion that the admission of the testimony complained of was not prejudicial and, therefore, does not constitute reversible error.
(Hn 11) The appellants contend also that the trial court erred in refusing their request for certain instructions seeking to authorize the jury to deny recovery in the event the proof showed the deceased to be guilty of contributory negligence. Contributory negligence is not a defense under the Tennessee decisions, although the jury may apply the same in reduction of the damages. Majestic v. Louisville N.R. Co., supra. The record discloses that the jury were peremptorily instructed that the deceased was guilty of contributory negligence. It is manifest from the size of the verdict that the jury applied the contributory negligence of the deceased in the reduction of damages.
(Hn 12) Appellants further contend that the court was without right to enter a judgment against the Illinois Central Railroad Company and its engineer, Sam King, on the verdict which was returned. The jury's verdict read: "We the jury find for the plaintiff and assess his damages at $2,000." The case was submitted to the jury solely on the question of the liability of the Illinois Central Railroad Company and its engineer in failing to give the statutory signals. No issue as to the liability of the Gulf, Mobile Ohio Railroad Company was submitted to the jury. Thus the sole parties as against whom a verdict might have been rendered were the appellants. No objection was made by the appellants at the time the verdict was returned to the form of the verdict, nor was there any request by the appellants to have the verdict re-formed. The evidence and all of the proceedings in the case, as well as the instructions to the jury, made it clear that the intention of the jury was to render a verdict against the Illinois Central Railroad Company and its engineer. The court accordingly entered judgment against the Illinois Central Railroad Company and Sam King, and, in our opinion, the court was correct in so doing. (Hn 13) In the case of Johns v. State, 78 Miss. 663, the Court said: "The evidence and all the proceedings in this case may be looked at in order to ascertain the intention of the jury and when that is discovered, it is the duty of the court to give it effect. 28 Am. Eng. Ency. L. (1st ed.) 254, et seq." We think that the trial court correctly ascertained the jury's intention to render a verdict against the Illinois Central Railroad Company and Sam King, and that he was correct in giving such effect to the verdict and entering judgment accordingly.
The appellants have set forth innumerable other assignments of error. To discuss each separately would unduly prolong this opinion. We have, however, carefully examined and considered each and every assignment of error urged by the appellants on this appeal, including the court's action in granting certain instructions and refusing certain instructions and in his rulings upon the admissibility of testimony, and we find no reversible error therein.
Upon a careful review of the entire record, we have reached the conclusion that it is free from reversible error and that the judgment of the court below should be and it is affirmed.
Affirmed.
McGehee, C.J., and Hall, Kyle and Gillespie, JJ., concur.