OpenJurist

243 F2d 764 Southern Railway Company v. O Clevenger

243 F.2d 764

SOUTHERN RAILWAY COMPANY, Appellant,
v.
Robert O. CLEVENGER, Appellee.

No. 13044.

United States Court of Appeals Sixth Circuit.

April 22, 1957.

Key & Lee, Knoxville, Tenn., for appellant.

Hodges & Doughty, Knoxville, Tenn., for appellee.

Before SIMONS, Chief Judge, and McALLISTER and STEWART, Circuit Judges.

PER CURIAM.

1

Appellee sustained serious injuries in a grade crossing accident at Jefferson City, Tennessee, when he jumped from his moving truck before it collided with appellant's locomotive. After trial without a jury, the district court awarded damages to the appellee, finding upon substantial evidence that the locomotive had failed to sound its whistle or bell before entering upon the crossing in violation of the Tennessee Statutory Precautions Act, Tenn. Code Anno. § 65-1208. The district court also found that the appellee was free from contributory negligence. While we might have found the facts otherwise, the findings of the district court were not clearly erroneous.

2

The district court was not in error in holding that subsection 3 of the Tennessee Statutory Precautions Act was applicable, even though the appellee had jumped from the truck before the collision. It therefore becomes unnecessary to consider whether the appellant's conduct also amounted to common law negligence.

3

The judgment is affirmed.