70 S.W. 1030 (Tenn. 1902), White v. Nashville, C. & St. L.R. Co.

Citation:70 S.W. 1030, 108 Tenn. 739
Opinion Judge:McALISTER, J.
Party Name:WHITE v. NASHVILLE, C. & ST. L. RY. CO.
Attorney:Brien & Noble, for appellant. Claude Waller and J. D. De Bow, for appellee.
Case Date:December 10, 1902
Court:Supreme Court of Tennessee
 
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Page 1030

70 S.W. 1030 (Tenn. 1902)

108 Tenn. 739

WHITE

v.

NASHVILLE, C. & ST. L. RY. CO.

Supreme Court of Tennessee.

December 10, 1902

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.

McALISTER, J.

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...

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