FILED

January 6, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS

WILLIAM T. RAWLS, ) KNOX CIRCUIT 

 ) C.A. NO. 03A01-9707-CV-00293

 )

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. WHEELER A. ROSENBALM

 ) JUDGE

 )

 )

 )

 )

 )

N.V. HODGE, NORFOLK SOUTHERN ) AFFIRMED IN PART 

RAILWAY COMPANY, DYCHO ) REVERSED IN PART

COMPANY, INC., AND JAMES ) REMANDED

MOYER MASSEY, )

)

 Defendants-Appellants )

ROBERT E. PRYOR, Pryor, Flynn, Priest & Harber, Knoxville, for

Appellant.

JOHN W. BAKER, JR., Baker, McReynolds, By rne, O'Kane, Shea &

Townsend, Knoxville, for Appellees N.V. Hodge and Norfolk Southern

Railway Company.

HOWARD H. VOGEL & ANDREW CRAIG TROUTMAN, O'Neil, Parker & Williamson, Knoxville, for Appellee Dycho Company, Inc.
2

O P I N I O N

McMurray, J.

W illi a m T. Rawls (plaintiff) brought this action to recover

damages resulting from a collision between a truck in which he was

a passenger and a train owned by Norfolk Southern Railway Company.

The truck was being driven by the defendant, James Massey. The

train engineer was the defendant, N. V. Hodge. Rawls alleged that

Norfolk Southern's locomotive was at the time of the collision

being operated in a negligent ma nner under the circumstances

existing at the crossing where the accident took place. He alleged

that Hodge failed to give warning by blowing the train's whistle or

horn, and that the crossing was not sufficiently marked by adequate

warning devices. Rawls also sued Dycho Company, the owner of the

land adjacent to the railway, alleging that a fence which Dycho had

placed on its land, together with various struct ures a nd objects

inside the fence, constituted a dangerous obstruction which blocked

the view of the oncoming train.

Defendants, Norfolk Southern, Hodge, and D ycho moved for

summary judgment. Summary judgment was granted by the trial court

o n the grounds that there was no negligence on the part of the

movants which pro ximately caused Rawls' injury. A non-suit was

taken as to the defendant, Massey. Additionally, the court made
3

the order final pursuant to Rule 54.02. Therefore, the trial

court's order is final and appealable.

The issue on this appeal is whether the trial court was

correct in granting summary judgment to the moving defendants. We

affirm the trial court's judgment as to Dycho, but find there are

genuine issues of material fact precluding summary judgment against

the defendants, Norfolk Southern and N. V. Hodge.

The standards governing a review of a trial court's grant of

summary judgment are well-settled:

Tenn.R.Civ.P. 56.03 provides that summary judgment

i s only appropriate where: (1) there is no genuine issue

with regard to the material facts relevant to the claim

o r defense contained i n t he motion, Byrd v. Hall , 847

S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is

entitled to a judgment as a matter of law on the undisputed fac ts. Anderson v. Standard Register Co. , 857

S.W.2d 555, 559 (Tenn. 1993). The moving party has the

burden of proving that its motion satisfies th ese

requirements. Downen v. A llst ate Ins. Co. , 811 S.W.2d

523, 524 (Tenn. 1991).

The standards governing the assessment of evidence

i n the summary judgment context are also well es tab -

lished. Courts must view the evidence in the light most

favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor.

Byrd , 847 S.W.2d at 21 0-1 1. Courts should grant a

summary judgment only when both the facts and the

conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion. Id.

Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).

On October 10, 1992, at about 9:00 AM, Massey and Rawls were

i n the process of delivering some furniture for th eir employer.
4

They were procee ding g enerally south on Mederian Street in Niota

when they were struck by the eastbound train. The crossing had a

"crossbuck" sign indicating the presence of railroad tracks, but no

other warning devices.

Dycho owns the land in the northwest quadrant adjacent to the

railroad and to Mederian Street. Dycho had constructed, on its

property, a chain link fence approximately nineteen feet from the

center of the railroad tracks, r unning parallel to the railroad.

Inside the fence were various structures and objects owned and

maintained by Dycho.

W e first address the propriety of summary judgment in favor of

Dycho. The plaintiff contends that Dycho was negligent in erecting

and maintaining the structures and objects on its land because they

constituted a dangerous obstruct ion to the view of any oncoming

eastbound train. Dycho responds that it is "a private land owner

with no duty to maintain the public road, its property, the

railroad right of way or the signage or signaling in connection

therewith"; that it has the right to improve and utilize its

property as it wishes, and that there is no duty on its part not to

obstruct the view of the railway.

Plaintiff counters by arguing that T.C.A. § 39-17-307

establishes such a duty on the part of Dycho. T.C.A. § 39-17-307

provides in pertinent part as follows:
5

(a) A per son commits an offense who, without legal

privilege, intentionally, knowingly or recklessly:

(1) Obstructs a highway, street, sidewalk, railway,

waterway, elevator, aisle, or hal lway to which the

public, or a substantial portion of the public, has

access... .

* * * *

(b) For purposes of this section, "obstruct" means

t o render passage impassa ble or to render passage

unreasonably inconvenient or potentially injurious to

persons or property.

T.C.A. § 39-17-307 is a criminal or penal statute. We are of

the op inio n that the statute has no application to the case at

hand. It is a fundamental rule that penal statutes and ordinances

are strictly construed. Kitts v. Kitts , 136 Tenn. 314, 189 S.W. 375

(1916). "A penal statute or o rdinance will not be enlarged by

implication or intendment beyond the fair meaning of the language

used ... ." Richmond v. State , 171 Tenn. 1, 100 S.W.2d 1 (1937).

City of Kingsport v. Jones , 268 S.W.2d 576 (Tenn. 1954). We do not

believe that the use of one's property for lawful purposes without

encroachment upon the right-of-way of a roadway constitutes an

offense using the "fair meaning of the language test." It,

therefore, follows that there was no violation of the statute under

the circumstances of this case.

Considering all the undisputed evi d ence and all legitimate

inferences that may be drawn therefrom, reasonable minds cannot
6

differ regarding the defendant Massey's failure to look to his

right earlier than immediately before impact. When Massey looked

t o his right, the truck was already on the tracks. Therefore,

plaintiff's injury could not have been proximately caused by a

breach of a duty on the part of Dycho even if a duty existed.

Mr. Massey testified by deposition as follows:

Q . And those [crossings] that do not have, in you r

judgment, pretty good visibility, what would you

do? What was your habit and your custom?

A . This is the first one I've ever come to that didn't

have good visibility.

Q . And as a result of it not having, in your mind,

pretty good visibility, what precautions did you

take as a result?

A . Listening for a whistle.

Q . Anything else?

A . No, sir.

* * * *

Q . As you approached, did you look to your left?

A . It seems like I looked to my left. I didn't stop.

I kept — continued going. And just out of the

corner of my right eye, I remember seeing a light

and it seemed like I might have heard a whistle

just prior to impact. And then when I came to, the

truck was sitting in a field.

* * * *

Q . And I take it that when you heard that whistle and

saw that light out of the corner of your eye, your

vehicle had already entered upon the tracks?

A . Yes, sir.
7

* * * *

Q . D o you normally look for trains coming at th e

moment you' re driving up and across the bumps, or

are you watching the road at that point normally?

A . Normally I'm watching the road.

Q . D o you believe that based upon your past driving

habits and experiences, that on the da y of this

wreck, October the 10th, 1992, that before you got

to the railroad tracks, you looked for a train and

listened for a train? Do you believe you did that?

* * * *

A . I know I was listening, but as far as looking, I

don't really think I paid close attention lookingwise.

* * * *

Q . Did I underst and yo u to say that the first awareness you had of the train's presence was you got a

glimpse of the light?

A . Yes, sir.

* * * *

Q . Can we assume then you feel, reflecting back on it,

that you were reasonably aware of what was going on

as you drove down through there?

* * * *

Q D o you believe that you were being reasonably

aware?

* * * *

A . As far as using my hearing, yes, sir.

Two depositions of Mr. Massey are in the record. In neither

does he st ate that he looked to his right before entering the

railroad crossing.
8

Q From all you know about this w reck , having been

involved in it and going back to the scene , do you

believe the re was an obstruction to your view

between you and the train in that Dycho area there?

* * * *

Q . That blocked the view of the train?

A . I pers onally believe there was some type of obstruction.

Q . Yes. 

A . Or else I would have seen the light sooner.

* * * *

Q . And between you and the train, the way you were

approaching the track w i th the train coming from

your right, there's a yard there with a chain link

fence around it.

A . Uh-huh.

Q . And you know today and after this wreck that there

was stu ff in that chain link fence, inside there;

tanks and all kinds of machinery, mechanical stuff.

A . Uh-huh, yes, sir.

Q . And after the wreck, in the days and weeks that

followed, when you went out there and looked at it ,

whenever it was, you found out that that did block

y o u r view or didn't block your view of the train

and the train's view of you?

A . It did.

(Emphasis added to the above testimony.)

The testimony clearly reflects that Mr. Massey did not become

aware of the obstruction alleged to have been created by Dycho

until after the accident occurred. The evidence taken as a whole
1

We should note that no testimony by the plaintiff is in the record.

9

excludes the obstruction, if any, caused by Dycho as a proximate or

legal cause of the accident. 1

Stated differently, we find from the undisputed evidence that

there is no genuine issue of a material fact as to whether Massey

looked to his right, the direction from which the train struck his

vehicle, before entering the crossing. From the undisputed

evidence, the trier of fact could not reasonably conclude that he

did. Thus, even if there was a dangerous obstruction negligently

placed by Dycho on its property, it could not have been either a

cause in fact or a proximat e or legal cause of this accident.

"Proof of negligence witho ut p roof of causation is nothing."

Kilpatrick v. Bryant , 868 S.W.2d 594, 599 (Tenn. 1993), quoting Doe

v. Linder Const. Co., Inc. , 845 S.W.2d 173 (Tenn. 1992).

W e recognize that there is authority that a la ndowne r or

occupier has a duty to exercise reasonable care in the use of his

property so as not to inju re pos sessors on adjoining properties.

See Louisville & Nashville Railroad v. Fort , 112 Tenn. 432, 80 S.W.

429 (1904); Nashville Chattanooga & St. Louis Railway v. Wade , 127

Tenn. 154, 153 S.W. 1120 (1912). We express no opinion as to

whether Dycho was negligent. We simpl y no te that if Dycho was

negligent, such negligence was not a proximate or legal cause of

the plaintiff's injury, under circumstances shown by the undisputed
10

evidence before the court. The trial court was correct in granting

summary judgment in favor of Dycho.

We now turn to the propriety of granting summary judgment to

the railroad defendants. The plaintiff, while acknowledging

s u bstant ial negligence on Massey's part, argues that Norfolk

Southern and its engineer Hodge were also guilty of negligence

which proximately caused his injury. Plaintiff's theo ry is that

Hodge did not blow the train's whi stle or sound the horn until

immediately before impact, and had he kept a good lookout and

sounded a warning earlier, Mr. Massey and the plaintiff would have

been alerted to the train's presence and would have stopped before

entering the crossing.

A l though the railroad defendants' answer to the compl ain t

avers that the plaintiff should be barred from recovery because of

his own neglig ence, they do not assert or argue this on appeal,

contending instead that the sole and proximate cause of the

accident was Massey's negligence. The plaintiff argues that under

these circumstances, if the trier of fact could reasonably find the

railroad defendants guilty of any negligence, however slight, which

proximately caused his injury, they should not be granted summary

judgment. 
11

W e agree with this argument. Under our system of comparative

fault, "so long as a plaintiff's negligence remains less than the

defendant's negligence the plaintiff may recover." McInt yre v .

Ballent ine , 833 S.W.2d 52, 57 (Tenn. 1992). Also, "in case s o f

multiple tortfeasors, plaintiff will be entitled to recover so long

a s plaintiff's fault is less than the combined fault of all

tortfeasors." Id. at 58.

Norfolk Southern relies upon the case of Eaton v. McClain , 891

S.W.2d 587 (Tenn. 1994), and the analytical factors regarding

comparative negligence contained therein, in sup por t of its

argument that the trial court's summary judgment was correct. In

Eaton , h owev er, the Supreme Court "clarif[ied] the circumstances

under which a trial or appellate court may hold, as a matter of

law, that the plaintiff's de gree of fault is equal to or greater

than t he defen dant's." Id. at 590. Here, it has not been shown

that plaintiff has any degree of fault at all.

It is a well-settled rule in Tennessee that an injury may be

proximately caused by several concurrent negligent acts or

omissions:

In order to be a proximate cause of an injury, a negligent act or omission must have been a substantial factor

i n bringing about the injury. Boling v. Tennessee State

Bank , 890 S.W.2d 32, 36 (Tenn. 1994); McClenahan v.

Cooley , 806 S.W.2d 767, 775 (Tenn. 1991). An injury may

be proximately caused by more than one negligent act or
12

omission. Kelley v. Johnson , 796 S.W.2d 155, 159 (Tenn.

App. 1990); Stokes v. Leung , 651 S.W.2d 704, 708 (Tenn.

App. 1982). Thus, a negligent act or omission need not

be the sole cause of an injury to be a proximate cause.

McClenahan v. Cooley , 806 S.W.2d at 775; Lancaster v.

Monte s i , 216 Tenn. 50, 57, 390 S.W.2d 217, 221 (1965) .

Each person whose negligence is a proximate cause of an

injury may be ind ependently liable for the injury.

McClenahan v. Cooley , 806 S.W.2d at 775.

Burgess v. Harley , 934 S.W.2d 58, 68 (Tenn. App. 1996).

Cau s ation questions, which are fact-sensitive, are for the

trier of fact to decide unless the undisputed facts, and the

inferences drawn therefrom, permit only one reasonable conclusion.

Haynes v. Hamilton County , 883 S.W.2d 606, 612 (Tenn. 1994).

 T.C.A. § 65-12-108 provides the following:

65-12-108. Precautions required for prevention of

accidents . — In order to prevent accidents upon railroads,

the following precautions shall be observed:

(1) The officials having jurisdiction over every

publ i c road crossed by a railroad shall place at each

crossing a sign, marked as provided by § 65-11-105. The

county legislative body shall appropriate money to defray

the expenses of the signs. The failure of any engine

driver to blow the whistle or ring the bell at any public

crossing so designated by either the railroad company or

the public official shall constitute negligence with the

effect and all as set forth in § 65-12-109;

(2) On approaching every crossing so distinguished,

the whistle or bell of the locomotive shall be sounded at

the distance of one fourth (1/4) of a mile from the

crossing, and at short int ervals until the train has

passed the crossing;
13

(3) 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, th e alar m

whistle shall be sounded, the brakes put down, and every

possible means employed to stop the train and prevent an

accident;

* * * *

T.C.A. § 65-12-109 provides as follows:

65-12-109. Violation of § 65-12-108 is negligence

per se. — A violation of any of the provisio ns of §

65-12-108 by any railroad company constitutes negligence

per se and in the trial of any causes involving §

65-12-108, the burden of p roof , the issue of proximate

cause, and the issue of contributory negligence shall be

tried and be applied in the same manner and with the same

effect as in the trial of other negligence actions under

the common law in Tennessee. 

Massey testified several times that he did not hear a whistle

o r horn until immediately before the collision. He deposed as

follows:

Q . Then you m ust no t have known there was a train

coming.

A . No, I didn't.

Q . You didn't hear it.

A . No. If I'd heard a whistle I'd have stopped.

Q . Then you went through something ther e; you went

through the trauma of the wreck and your head was

hit and so forth.

A . Uh-huh.
14

Q . I want to know what your answer would be to this:

D o you believe that that trai n d idn't blow or do

you believe that you just didn't hear it?

A . I believe the train didn't blow, because when they

blow in Niota you can hear them from a good ways

away.

Q . Have you got good hearing?

A . Yes, sir.

Q . If that train would have blown coming down on that

crossing to warn motorists, do you think you would

have heard it?

A . Yes, sir.

N. V. Hodge testified that as he approached the crossing, he

started blowing the crossing whistle signal and when he saw the

truck he blew a warning signal. Mr. Hod ge c ould not, however,

provide a rough estimate of how close he was to the truck when he

first saw it, except that it was "sudden."

Massey's testimony creates a genuine issue of material fact as

t o whether Hodge blew the whist le or sounded the horn within the

distance required by T.C.A. § 65-12-108. The transcript of the

hearing on this issue reveals that the trial court recognized that

there may be a genuine issue of a material fact or facts with

regard to the negligence of Mr. Hodge. He stated:

And I am concerned, I think that there may be some

evidence here of negligence on — arguably on the part of

the railroad. There is probably some suggestion here ,

maybe an inference, that the engineer didn't blow his

horn.
15

Taking Hodge's testimony in a light most favorable to the

plaintiff, a reasonable jury could conclude that, since he did not

see the truck until "suddenly" before impact, Hodge was not keeping

a good and adequate lookout. If the jury were to find that Hodge

did not keep a sufficient lookout or failed to blow the whistle or

sound the horn, it could reasonably determine that such a failure

t o warn Massey and the plaintiff of the train's presence, w as a

proximate cause of the accident.

Thus, s umm ary judgment should not have been granted to the

rai lroad defendants. The trial court's order granting summar y

judgment to Mr. Hodge and Norfolk Southern is reversed. The trial

court's judgment in all other respects is affirmed. Th is cas e

remanded to the trial court for such other and further action that

may be required consistent with this opinion. Costs on appeal are

assessed equally between the appellan t a nd appellee Norfolk

Southern. 

 ________________________________

 Don T. McMurray, Judge

CONCUR:

_______________________________

Herschel P. Franks, Judge

_______________________________
16

Charles D. Susano, Jr., Judge
IN THE COURT OF APPEALS

WILLIAM T. RAWLS, ) KNOX CIRCUIT 

 ) C.A. NO. 03A01-9707-CV-00293

 )

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. WHEELER A. ROSENBALM

 ) JUDGE

 )

 )

 )

 )

 )

N.V. HODGE, NORFOLK SOUTHERN ) AFFIRMED IN PART 

RAILWAY COMPANY, DYCHO ) REVERSED IN PART

COMPANY, INC., AND JAMES ) REMANDED

MOYER MASSEY, )

)

 Defendants-Appellants )

JUDGMENT

This appeal came on to be heard up on the record from the

Circuit Court of Knox County, briefs and argument of counsel. Upon

consideration thereof, this Court is of the opinion that there was

some reversible error in the trial court.

The trial court's order granting summary judgment to the

defendants, Mr. Hodge and Norfolk Southern, is reversed. The trial

court's judgment in all other respects is affirmed. This case is

remanded to the trial court for such ot her a nd further action as
may be required consistent with this opinion. Costs on appeal are

assesse d e qually between the appellant and appellee Norfolk

Southern.

PER CURIAM