Prater v. Louisville & Nashville Railroad , 59 Tenn. App. 82 ( 1968 )

TODD, J.

Plaintiff, G-eorge Prater, sued the defendant, Louisville and Nashville Railroad Company, Inc., for personal injuries sustained when the truck in which he was a passenger was struck by defendant’s locomotive near a highway crossing.

In the first count of the declaration the plaintiff charged the following acts or omissions of negligence:

1. Failure to sound bell or whistle in time.

2. Maintenance of a dangerous crossing.

3. Failure to keep proper look out.

4. Failure to apply brakes when obstruction appeared on tracks.

5. Failure to stop train after seeing plaintiff’s peril.

The second count of the declaration charged violation of Section 65-1208 T.C.A., which provides statutory precautions at certain railroad crossings.

The plea of the defendant denied all of the foregoing charges and affirmatively plead contributory negligence.

At the conclusion of plaintiffs evidence, defendant’s motion for directed verdict was sustained; and plaintiff has appealed in error.

Plaintiff assigns as error the action of the trial court in directing a verdict for the defendant. There is testimony to support a finding that the truck occupied by plaintiff approached the railroad crossing upon the public highway at a reasonable speed; that the brakes of the truck were applied at such a distance from the railroad tracks as that the truck would ordinarily have stopped before reaching the tracks; that after skidding the tires a few feet the brakes failed completely; that the truck driver turned the truck from the highway intending to go into an open field; that, as the truck attempted to cross the ditch between the highway and the field, the wheels of the truck were caught in the ditch and the truck rolled or skidded out of control along the ditch until the truck reached the railroad, tracks and stopped upon the tracks a few feet from the edge of the highway.

There is further evidence to show that defendant’s train consisted of a locomotive,, three empty cars and a caboose, of about 75 tons load; that the crew saw the foregoing movements of the truck; that the ordinary running brakes of the train were already slightly applied because of a downgrade movement; that at some stage of the truck’s antics the engineer released the running brakes; that, when the locomotive lacked a few feet of reaching the crossing, the truck was seen to come to a stop on the rails; that at that time the emergency brakes were applied; that the train crossed the highway and struck the truck pushing it about 10 or 12 feet; that slightly more than the width of a two lane highway was required to stop the train; and that the train was almost stopped when it struck the truck.

The foregoing does not present the classic case pf the motorist “racing the train to the crossing”', or of the motorist ‘ ‘ stopping at the last minute ”, both of which are commonplace in the observation of the average person and in the experience of the trainmen. Neither is this the type of case, well known to the courts, wherein the vehicle appears upon the tracks suddenly and too late for the crew to stop a long, heavy train travelling at considerable speed. The plaintiff insists, and there is evidence to show, that this is a bona fide instance of last clear chance wherein the occupants of the truck were helpless to avoid the peril which should have been obvious to the train crew who were in a position to avoid the peril by the application of the emergency brakes an instant sooner thereby stopping the train before it collided with the truck.

The evidence does not support the first ground of the first count, because both plaintiff and his driver admit that they saw and heard the train in ample time to stop for the crossing if the brakes had not failed.

For the same reason, arid the further reason that plaintiff’s proof showed good visibility for the train crew, the second ground of the first count is not supported by the evidence.

Plaintiff’s proof also shows that the train crew were keeping a look-out and did see the truck approach the crossing under the circumstances ahoye stated. Therefore the evidence does not support the third ground of the first count.

Plaintiff’s proof shows that the emergency brakes of the train were applied immediately after the truck appeared on the tracks. The fourth ground of the first count likewise is unsupported by the evidence.

Grounds 1, 2, 3, and 4 of the first count of the declaration are in effect a common law reiteration of the statutory charges upon which the second count is based. The evidence does not support the second (statutory) count of the declaration for the same reasons that it does not support the first four grounds of the first count. Furthermore, the record discloses no evidence that the crossing in question had been duly designated for statutory precautions as required by Section 65-1208, T.C.A. Annotated with this code section are many cases which support a directed verdict on the statutory count under the circumstances of this case.

The theory upon which the plaintiff must recover, if at all, is set out in the fifth ground of the first count of the declaration. The strange movements of the truck, in full view of the train crew, could be sufficient to reasonably apprise the crew that the truck was out of control and its occupants in dire straits. Reasonable minds might reasonably reach differing conclusions upon the issue thus presented. It might well be argued and concluded that a truck turning off a highway toward a field and following a ditch toward the rails was upon some legitimate mission which would not involve crossing the railroad. With equal reason and logic, it could be argued and concluded that such movements of the truck were an admonition of peril, requiring action by the train crew. The situation might be compared to that of a vehicle with brake applied on a wet or icy highway, which turns to a broadside position as it skids toward the rails out of control.

In the case of Gaines v. Tenn. Cent. Ry. Co., 175 Tenn. 389, 136 S.W.2d 441, a directed verdict was affirmed upon the statutory count, however the court found evidence of common law negligence in failing to make an effort to stop the train after it became apparent to the engineer that the automobile was approaching the track under circumstances indicating that * * * a collision was imminent unless something was done. The cause was remanded for trial upon the limited issues in respect to which there was evidence to support plaintiff’s case. In respect to issues on which there was no evidence to support plaintiff, the Court said:

“We agree, therefore, with the Court of Appeals that justice will not be furthered by another trial of these issues and that any new trial should be to some extent limited in its scope.” (175 Tenn. at 394, 135 S.W.2d at 442)

The action of the trial court in directing a verdict was correct in respect to the first four grounds of the first count and the entire second count, and in these respects is affirmed.

In respect to the fifth ground of the first count, the assignment of error is sustained, and the cause will be remanded for trial upon the limited issue presented by the fifth ground of the first count of the declaration.

Upon remand, and prior to trial, the first four grounds of the first count and the entire second count of the declaration should be stricken and withheld from consideration of the jury. Only the fifth ground of the first count of the declaration should be presented to the jury as a theory or ground of liability. The plea of the defendant should be amended accordingly.

Plaintiff complains that he was. not permitted to cross examine one of the train crewmen. Plaintiff called this crewman as his own witness, but claimed surprise on the ground that the witness's testimony varied from that given in a discovery deposition previously taken. The discovery deposition is not made a part of the record in this Court, hence its contents cannot be considered. The bill of exceptions records statements of counsel for plaintiff which might be construed as quotations from the deposition, but this is not sufficient. In the absence of stipulation of counsel, excerpts read into the record, or other authoritative preservation of the contents of the deposition, this assignment of error cannot be considered.

The cause is remanded for a trial anew only upon the first count of the declaration with the deletion therefrom of paragraphs numbered 1, 2, 3, 4. The costs of this appeal will abide and follow the final determination of the cause.

Affirmed in part.

Reversed in part, and remanded.

Shriver, P. J. (M.S.), and Puryear, J., concur.