Nor was a dangerous crossing alone, but a high and dangerous rate of speed in combination with a blind and dangerous crossing presented a question of fact to be determined by the jury. Stem v. Nashville Interurban Ry., 142 Tenn. 494, 221 S.W. 192; Louisville N. Railroad Co. v. Frakes Payne, 11 Tenn. App. 593, 606. We think that the evidence and the inferences deducible therefrom required submission of the issue of negligence to the jury.
In absence of evidence to the contrary, it is the Tennessee rule that decedent was presumed at the time to be exercising ordinary care. Louisville Nashville Railroad Company v. Frakes and Payne, 11 Tenn. App. 593, 613, 614; Oder v. Parks, 34 Tenn. App. 303, 237 S.W.2d 571, 576. In the situation presented, with the freight train an hour ahead of schedule, not giving the customary crossing whistle, and decedent slowly driving up a steep grade to the track, reasonable minds might well differ as to basic findings of fact.
The foregoing exact language of the charge was also approved as good law by this court in Louisville N.R. Co. v. Tucker, 6 Cir., 211 F.2d 325, 330; but, on petition for rehearing in the last-cited case, Louisville N.R. Co. v. Tucker, 6 Cir., 215 F.2d 227, a per curiam opinion ordered the language to be stricken and deleted from the former opinion of the court, for the reason that it did not state properly existing Tennessee law as explained in the Tennessee decisions subsequent to the Anthony case, supra, upon which it was originally based. The following authorities were cited as requiring the deletion: Louisville, N. G.S.R. Co. v. Reidmond, 79 Tenn. 205, 210, 211; Louisville N.R. Co. v. Frakes, 11 Tenn. App. 593, 614; Gaines v. Tennessee Cent. Ry. Co., 175 Tenn. 389, 393, 135 S.W.2d 441; Cincinnati, N.O. T.P.R. Co. v. Galloway, 6 Cir., 59 F.2d 664, 666. In the Gaines case, supra [ 175 Tenn. 389, 135 S.W.2d 442], Chief Justice Green of the Tennessee Supreme Court said: "As ruled in many decisions of this court, appearance on the road means appearance on the track in front of the moving train, or so near that the object will be struck by the moving train.
Appellant's petition for rehearing, together with brief of amici curiae, having been considered by the Court; And the Court being of the opinion that the following quotation in the Court's opinion of March 8, 1954, taken from the opinion in Majestic v. Louisville N.R. Co., 6 Cir., 147 F.2d 621, 624-625, which in turn was based on Nashville Chattanooga R. Co. v. Anthony, 69 Tenn. 516, does not properly state the present Tennessee rule as explained in Tennessee cases subsequent to Nashville Chattanooga R. Co. v. Anthony, supra; see Louisville, N. G.S.R. Co. v. Reidmond, 79 Tenn. 205, 210-211; Louisville N.R. Co. v. Frakes Payne, 11 Tenn. App. 593, 614; Gaines v. Tennessee Central Ry. Co., 175 Tenn. 389, 393, 135 S.W.2d 441; Cincinnati, N.O. T.P. Ry. Co. v. Galloway, 6 Cir., 59 F.2d 664, 666. It is ordered that said quotation, reading as follows, be stricken and deleted from the opinion of the Court:
Gaines v. Tennessee Central R. Co., supra; Chattanooga Rapid Transit Co. v. Walton, supra. For example "if the train approached a much used public crossing (whereon the presence of persons and vehicles might reasonably be anticipated), at a rate of speed which the engineer knew would render it impossible to comply with the requirements of the statute if an obstruction appeared on the crossing, the non-observance of the statutory precautions would not be excused." Louisville N.R. Co. v. Frakes Payne, 11 Tenn. App. 593, 617-618. The evidence in this case does not show without contradiction or reasonable inference to the contrary, that the automobile was first seen by the train crew, or should have been seen by it in keeping a proper lookout ahead, simultaneously with the impact.
Keith v. Clarke, 72 Tenn. 718. In Louisville N.R.R. Co. v. Frakes, 11 Tenn. App. 593, 641, Presiding Judge Faw said: "`the privilege of the jury to decline finding any other than a general verdict' * * * is, in our opinion, too firmly imbedded in the practice in this State to be disregarded by the trial courts" ( 11 Tenn. App. 641).
This contention is robbed of validity by the significant fact that other witnesses for the plaintiff, notably James E. Hearn, Jr., and E. A. Shands, testified in substance that the conditions depicted by Merritt remained unchanged down to the moment of the plaintiff's alleged injury. This being true, the testimony of Merritt was competent under the rule that evidence of conditions before an accident may be received where it is also shown that such conditions remained unchanged down to the occurrence of the accident. Perry v. Manufacturing Co., 176 N.C. 68, 97 S.E. 162; Millman v. U.S. Mortgage Title Co. of New Jersey, 121 N.J.L. 28, 1 A.2d 265; Louisville N. R. Co. v. Frakes, 11 Tenn. App. 593; 20 Am. Jur., Evidence, section 306; 38 Am. Jur., Negligence, section 313; 65 C.J.S., Negligence, section 230. 3. While he was undergoing cross-examination the plaintiff's witness S. T. Glover made this unresponsive answer to a question put to him by defendant's counsel: "The steps have been chipped at one time since the accident.
While it is permissible for an engineer to thus express his opinion, it is not conclusive, as this question is within the exclusive province of the jury. Louisville N.R. Co. v. Frakes et al., 11 Tenn. App. 593. So, it appears that it was a question for the jury to determine whether the engineer complied with subsection 4 of section 2628 and sections 2629 and 2630 of the Code providing that in case of non-compliance the railroad company shall be liable, etc.
We do not find any evidence in the record indicating that the Railway Company had been remiss with reference to the maintenance and inspection of this signal device, nor that the Company had knowledge or was chargeable with knowledge that the device was out of order. See L. N. Railroad Co. v. Frakes, 11 Tenn. App. 593. The failure of the automatic signal bell to ring on the approach of the train, which is a controverted issue in this record, cannot therefore be relied on by either plaintiff as a ground of recovery.
While it is true that, like a dead man, an amnesiac is afforded the presumption that he acted with due care, such presumption continues only in the absence of evidence to the contrary. Tennessee Cent. Railroad Co. v. Page (1925) 153 Tenn. 84, 282 S.W.2d 376; Oder v. Parks (1948 E.S.) 34 Tenn. App. 303, 237 S.W.2d 571; Louisville Nashville Railroad Co. v. Frakes and Payne (1928 M.S.) 11 Tenn. App. 593. All of the evidence in this case is to the contrary.