White v. Nashville, C. & St. L. Ry. Co.
| Decision Date | 10 December 1902 |
| Citation | 70 S.W. 1030 |
| Court | Tennessee Supreme Court |
| Parties | WHITE v. NASHVILLE, C. & ST. L. RY. CO. |
Appeal from circuit court, Davidson county; J. W. Bonner, Judge.
Action by Malachi White, by his next friend, against the Nashville, Chattanooga & St. Louis Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Brien & Noble, for appellant. Claude Waller and J. D. De Bow, for appellee.
This case went off in the court below on a demurrer to the sufficiency of the declaration. Plaintiff appealed, and assigned as error the action of the court in sustaining the demurrer.
The first count alleged that defendant company is the owner of a railroad engaged in operating freight and passenger cars, locomotives, etc., to a point known as "Orman's Quarry," in Davidson county, whereby it became the duty of said company to keep its roadbed, rails, cross-ties, coaches, and cars running thereon in a safe and secure condition, and up to the present state of the art; and especially so as not to endanger the lives of persons traveling in and upon said cars, or being near thereto, or having business therewith, or occasion to approach the same. It is then alleged that defendant company negligently and carelessly constructed a side track from its main line to said Orman's Quarry, and negligently and carelessly permitted the same to get out of repair, and get into an unsafe condition, and so to remain, and carelessly and negligently run its cars thereon while in such condition, whereby it caused its cars to turn over and fall from the track on and upon Bartholomew White, father of plaintiff, thereby crushing, mangling, and killing him, the said Bartholomew White. The second count charges substantially the same facts. The third count laid a cause of action against John Orman and John Orman, Jr., proprietors of said rock quarry, but the suit was afterwards dismissed as to these parties, and no further notice need be taken of the third count. Defendant company interposed a demurrer to this declaration, assigning three grounds, viz.: First. Plaintiff fails to aver in either of said counts any facts out of which arises any legal duty from this defendant to deceased. Second. The plaintiff fails to show in either of said counts that deceased was an employé of defendant, or a passenger upon its cars, or that he occupied any other relation to this defendant by which any legal duty to the deceased was imposed upon the defendant, a violation of which was the proximate cause of his death. Third. Neither of said counts shows that a violation of any legal duty which this defendant owed to the deceased was the proximate cause of his death. The crucial test of the declaration made by the demurrer is that it fails to show that the company owed the deceased any duty which it breached, and which may be made the foundation of an action. It is not stated therein whether the deceased was an employé, a passenger, or person lawfully upon the track, or a mere trespasser. If deceased was a trespasser, the company owed him no such duty as to render it liable for the mistake or negligence of its employés. The only duty which a railroad owes to a trespasser upon its train not...
To continue reading
Request your trial
-
Ruth v. Ruth
...Telephone & Telegraph Co. v. Cook, 103 Tenn. 730, 55 S.W. 152; Drake v. Hagan, 108 Tenn. 265, 67 S.W. 470; White v. Nashville, C. & St. L. Railroad, 108 Tenn. 739, 70 S.W. 1030. Applying the foregoing well settled rules to the case at bar, it appears that the declaration alleges that the pl......
- Duncan v. United Mut. Fire Ins. Co.
-
Westborne Coal Co. v. Willoughby
...It would not be an absence of care in a matter so obvious as to indicate the certainty or great probability of danger. White v. Railroad, 108 Tenn. 739, 70 S. W. 1030; Railroad v. Meacham, 91 Tenn. 428, 19 S. W. Counsel for defendant in error insists that the plaintiff in error was guilty o......
-
Dabbs v. Tennessee Valley Authority
...lines and equipment and that it was never intended to operate in event of a break in the Cooperative's line. White v. Nashville, C. & St. L. Railroad, 108 Tenn. 739, 70 S.W. 1030. Where no allegations of an existing duty are made it follows that a failure to act can impose no liability on t......