                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                      May 7, 2008 Session

       TENNIE MARTIN ET AL. v. NORFOLK SOUTHERN RAILWAY
                         COMPANY ET AL.

              Appeal by Permission from the Court of Appeals, Eastern Section
                            Circuit Court for Anderson County
                       No. A2LA0325      Donald Ray Elledge, Judge



                   No. E2006-01021-SC-R11-CV - Filed November 14, 2008



WILLIAM C. KOCH , JR., J., concurring in part.


         I concur with the result reached by the Court. Based on the current appellate record, there
exists a genuine factual issue regarding whether Conductor Danny Martin sounded the train’s whistle
as the train approached the crossing as required by Tenn. Code Ann. § 65-12-108(2) (2004).

       Summary judgment proceedings have never been envisioned as substitutes for trials of
disputed factual issues. Fruge v. Doe, 952 S.W.2d 408, 410 (Tenn. 1997). A motion for summary
judgment should never be granted when genuine issues as to any material fact exist. Doe 1 ex rel.
Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22, 41 (Tenn. 2005); Abbott v. Blount
County, 207 S.W.3d 732, 735 (Tenn. 2006). In addition, a summary judgment motion should not
be granted when there is any dispute regarding the reasonable inferences that can be drawn from the
undisputed facts. Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Mason v.
Seaton, 942 S.W.2d 470, 473 (Tenn. 1997).

         Tenn. Code Ann. § 65-12-108(2) imposes a statutory duty on the operator of a train to sound
the train’s whistle or bell “at a distance of one fourth (¼) of a mile from the crossing, and at short
intervals until the train has passed the crossing.” Mr. Martin testified that he sounded the train’s
whistle in accordance with his custom and practice, and two other witnesses confirmed that they
heard the train’s whistle. However, the plaintiffs produced another witness, Cecil Smith, who
testified that he was in a position to hear the whistle if it had been sounded but that he did not hear
the whistle. While there may be substantial doubt about the weight that a reasonable jury might give
to Mr. Smith’s testimony,1 it is sufficient for summary judgment purposes to create a genuine issue
with regard to whether Mr. Martin complied with his statutory duty to sound the train’s whistle as
it approached the intersection. This genuine issue of material fact should have been sufficient to
prevent granting the summary judgment in this case.



                                                             ______________________________
                                                             WILLIAM C. KOCH, JR., JUSTICE




        1
          I concur with the Court’s conclusion that the evidence regarding Mr. M artin’s hearing impairment was not
presented to the trial court and, therefore, cannot be considered by this Court.

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