Robert Kilian v. Louisville & Nashville Railroad Company ( 1967 )

KILEY, Circuit Judge

(concurring).

I concur in the judgment reached in the majority opinion, but because of doubt as to the correctness of the statement of the Tennessee doctrine of superior knowledge, I prefer to base my judgment on a different ground.

My doubt arises from reading the Tennessee cases. In Illinois Cent. R.R. v. Nichols, 173 Tenn. 602, 118 S.W.2d 213 (1938), the Tennessee Supreme Court properly decided on the facts that as a matter of law Nichols’ knowledge was “at least” equal to defendant’s. The Tennessee Court of Appeals in Park v. Sinclair Refining Co., 24 Tenn.App. 204, 142 S.W.2d 321 (1940), also properly decided in my view that as a matter of law on the facts and concessions there Park’s knowledge was equal to the defendant’s. Both Nichols and Park state the rule of liability as applied to the peculiar facts of each. Later Court of Appeals cases, however, Walls v. Lueking, 46 Tenn.App. 636, 332 S.W.2d 692 (1959), and Broome v. Parkview, Inc., 49 Tenn.App. 725, 359 S.W.2d 566 (1962), clearly advance a rule less stringent than that stated by the majority. Under the rule stated in Walls, an owner’s liability could rest on constructive knowledge as well as actual knowledge, where the danger was not normal or obvious. 332 S.W.2d at 695. And in Broome, constructive knowledge is clearly a ground of liability. 359 S.W. 2d at 569. In both these cases certiorari was denied by the Tennessee Supreme Court. In my view the Tennessee law does not mean that liability will be defeated when there is equal ignorance of the danger, but only when the plaintiff knows or should have known of the danger.

However, I concur because I see no prejudicial error in the giving of defendant’s instruction S (which purports to state the Tennessee rule of superior knowledge) which when read with the other instructions seems to me is freed of ambiguity. Although instruction S is directory, and ordinarily would have to be considered alone, I think on the facts here it need not be. Cf. Woods v. Meacham, 46 Tenn.App. 711, 333 S.W.2d 567, 582 (1959). Under the first sentence of instruction S the liability of defendant “may be grounded” on its superior knowledge. But the second sentence, taken alone, can be read as limiting liability to actual superior knowledge, thus omitting consideration of defendant's failure to have the superior knowledge it should have had. The sentences read together create an ambiguity. However, defendant’s instruction O and the instruction reciting the claim of plaintiff that defendant failed to “reasonably inspect telephone poles,” when read with defendant’s instruction S, remove the ambiguity. It seems to me the result is that the jury was told that if plaintiff proved defendant did not reasonably inspect the telephone poles as it should have — and accordingly did not have the superior knowledge it ought to have had — then if other elements of plaintiff’s case were proven, the jury should find defendant liable. Thus, as the majority opinion states, when the instructions are considered as a whole, there was no prejudicial error to Kilian.