Chesapeake, O. & S.W. R. Co. v. Foster

• Decision Date: 26 April 1890
• Citation: 14 S.W. 428,88 Tenn. 671
• Parties: CHESAPEAKE, O. & S.W. R. Co. et al. v. FOSTER.
• Court: Tennessee Supreme Court

14 S.W. 428

88 Tenn. 671

CHESAPEAKE, O. & S.W. R. Co. et al. v. FOSTER.

Supreme Court of Tennessee.

April 26, 1890

For majority opinion, see 13 S.W. 694.

The legitimate office of special or additional instructions to the jury, to be given at the request of the parties, is not to suggest or supply the original charge, but to cure and supply defects and omissions in that charge--"to present some material question not treated at all, or to limit or extend, eliminate or more accurately define, some proposition already submitted to the jury."--

FOLKES J., (dissenting.)

Concerning the main point of decision, I regret my inability to concur either with the reasoning or the conclusion as announced. The holding places a strictness of construction upon our statute which, to my mind, is wholly foreign to the legislative intention, and one extremely burdensome upon commerce and travel; for, while the burdents apparently upon the railroads only, it is in fact upon the public, who are directly interested in the speed and economy with which transportation of persons and property can be accomplished. Under this decision the railroad companies must apply the brakes, and use every possible means of stopping the train, whenever a person is seen on the track. This, too, without regard to the distance, and notwithstanding the person has responded to the alarm-whistle by looking up, or looking back, as the case may be, and otherwise indicated to the engineer in charge as a reasonable and prudent man, that he has seen and appreciates the danger, and will avoid it. Or, failing to apply the brakes and to attempt to stop the train, the company must respond in substantial damages to the party injured regardless of his conduct in thus misleading the engineer and in willfully remaining on the track until too late for any possible precautions, statutory or otherwise, to prevent the injury. The enforcement of such a rule would often require 48 hours for a train to pass from Memphis to Nashville, instead of 8 or 10 hours. It would render all close connections or through transportation-- confessedly of vital importance to persons and property--wellnigh impossible, as there could be no reasonable certainty of making schedule time if the gross negligence, caprice, or malice of those who are in the habit of making the road-bed a common footpath is to stop or slow up every train. To me it seems too plain for argument that the legislature never intended to place a living, moving, seeing, hearing, human creature of mature years and sound discretion on the same footing with cattle or inanimate objects, or with a person apparently unaware of the approaching train, or incapacitated by reason of his surroundings, or otherwise, from appreciating and guarding against the danger of the situation. The statute says, "person, animal, or other obstruction." Under well-known canons of construction the "person," within the meaning of the legislators, must be, or appear to the lookout to be, an "obstruction" upon the track. It could never have occurred to the legislature that a living, active, alert adult, who had indicated to a careful and prudent observer by his conduct that he saw and appreciated the danger, and would avail himself of ample time and opportunity afforded by the distance to step safely from the track, would be regarded as an obstruction so as immediately to call for resort to the statutory precautions against accident. This court has repeatedly held that our statute in question was only declaratory of the common-law rule of prudence and care in the exercise of precautionary measures to prevent accidents from the running of trains. Fleming's Case, 14 Lea, 139 and Humphreys' Case, 12 Lea, 200, where it is said these statutes "embody no more than the common law or any other enlightened system of jurisprudence demands at the hands of any citizen. This statute has only shifted the burden of proof." And in Pratt's Case, 85 Tenn. 14. 1 S.W. 618, Judge SNODGRASS, speaking for the present court, says, after citing Horne v. Railroad Co., 1 Cold. 75; Railroad Co. v. Connor, 9 Heisk. 21; and Burke v. Railroad Co., 7 Heisk. 463,--concerning the statute in question: "It does not create any new form of negligence which may be distinguished from another by the term 'statutory,' or leave out any which might be classified as 'common-law negligence."' That the company would not be liable under common-law principles in the case at bar, under the case put by the jury in its inquiry of the trial judge, and sustained by the record, there is no one so bold as to affirm, I presume. Schofield v. Railway Co., 114 U.S. 615, 5 S.Ct. 1125; Railroad Co. v. Houston, 95 U.S. 697. That the employes are not bound at common law to stop every time a person is seen ahead on the track, who gives evidence of being alert and of having heard and seen the train, has repeatedly been held by courts of high authority. Railroad Co. v. Stroud, (Miss.) 2 South. Rep. 171; Chrystal v. Railroad Co., (N. Y.) 11 N.E. 380; Nichols' Adm'r v. Railroad Co., (Ky.) 6 S.W. Rep. 339; Railroad Co. v. Walker, (Ind.) 15 N.E. 234; Railroad Co. v. Smith, (Tex.) 19 Amer. & Eng. R. Cas. 21; Railroad Co. v. Monday, (Ark.) 4 S.W. Rep. 782.

The case made in the proof, when taken in connection with the response of the trial judge to the inquiry made by the jury while they had the case under advisement, clearly presents the question we have been discussing, and emphasizes the error of the circuit judge. It is undisputed that the deceased heard the whistle, and said: "Come on, old train. I'll get out of your way." And some moments later, when the train had gotten within some hundred or two yards of him, again hearing the whistle, he turned and looked to see its distance, and this movement was observed by the engineer. It will not be out of place to repeat what took place between the court and jury. Being manifestly of opinion that there should be no recovery against the railroad, and yet embarrassed in reaching what to them appeared a just result under the instructions theretofore given, the jury "returned and asked the court whether, if they found that the defendant had not strictly complied with all the statutory rules or precautions as given in charge, yet deceased's own want of care and gross neglect was the direct cause of his injury and death, they could not yet find for the defendant; to which the court replied that they could not, but should consider such contributory neglect on the part of the deceased in mitigation of damages; but, if they found the railroad company wanting in full performance of statutory duties, plaintiff would be entitled to some damages in any event." The opinion of the majority does not attempt to justify the doctrine thus announced by anything to be found in the common law, but places its affirmance solely upon the statute, as imperatively demanded by...