224 F.2d 599
LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellant,
v.
Willie FARMER, Administrator of the Estate of Thomas Donald Farmer, Appellee.
No. 12147.
United States Court of Appeals Sixth Circuit.
June 10, 1955.
Walker, Hooker, Keeble, Dodson & Harris, Nashville, Tenn., for appellant.
Fyke Farmer, Nashville, Tenn., for appellee.
Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.
PER CURIAM.
Appellant, Louisville and Nashville Railroad Company, has urged in its petition for rehearing in this case that the driver of the automobile involved in the collision, namely Thomas Donald Farmer, the intestate of Willie Farmer, Administrator, was, upon the proof in the case, shown to have been guilty of contributory negligence as a matter of law.
The point is well taken; and it was not our intention, in our opinion, to leave the impression that we considered that the administrator of the decedent automobile driver had presented upon the whole evidence in the case a jury issue as to whether or not appellee's intestate was guilty of contributory negligence, for we think, upon the proof adduced, that he was guilty of contributory negligence as a matter of law.
Upon re-trial, if the same evidence and no more should be adduced by appellee, the trial judge would properly direct a verdict for defendant, regardless of whether or not the proof should show that the violation of the city ordinance of Springfield was one of the proximate causes of the accident. The Tennessee rule is that, where the joint negligence of the plaintiff and the defendant constitute the proximate cause of an accident, there can be no recovery by the plaintiff. We reiterate what we said in our opinion, that proximate contributory negligence of a plaintiff will defeat his recovery, though the negligence attributed to a defendant consists in the violation of an ordinance. McCampbell v. Central of Georgia Railway Co., 194 Tenn. 594, 599, 253 S.W.2d 763.
With this added expression of the instruction intended to be conveyed in our opinion and mandate remanding the case to the district court for a new trial, the petition for rehearing filed by the appellant railroad herein is denied.