Cincinnati, N. O. & T. P. R. Co. v. Ford

• Decision Date: 27 February 1918
• Citation: 202 S.W. 72
• Parties: CINCINNATI, N. O. & T. P. R. CO. v. FORD.
• Court: Tennessee Supreme Court

202 S.W. 72

CINCINNATI, N. O. & T. P. R. CO. v. FORD.

Supreme Court of Tennessee.

February 27, 1918.

Appeal from Circuit Court, Hamilton County; Nathan L. Bachman, Judge.

Suit by Roy Ford against the Cincinnati, New Orleans & Texas Pacific Railroad Company, resulting in judgment for plaintiff, which was affirmed by the Court of Civil Appeals, and defendant appeals. Judgments reversed, and suit dismissed.

Allison, Lynch & Phillips, of Chattanooga, for Cincinnati, N. O. & T. P. R. Co. Stanfield & Bright, of Chattanooga, for Roy Ford.

GREEN, J.

This suit was brought to recover the value of a female dog killed by a train of the plaintiff in error. There was a judgment below for $25, which was affirmed by the Court of Civil Appeals.

The dog was at large, and had not been registered and was killed while on the track of the railroad company. There is no evidence indicating a malicious or wanton killing.

Under these circumstances, we think the lower courts were in error, and that there can be no recovery in this case.

The provisions of chapter 50 of the Acts of 1901 and chapter 419 of the Acts of 1903 are brought forward into Thompson's Shannon's Code as follows:

"It shall be unlawful for any person to allow a dog belonging to him, or under his control, or that may be habitually found on premises occupied by him, or immediately under his control, to go upon the premises of another, or upon a highway, or upon a public road or street; provided, however, that this act shall not apply to a dog, on a hunt or chase, or on the way to or from a hunt or chase, nor to a dog guarding or driving stock or on the way for that purpose, nor to a dog being moved from one place to another by a person owning or controlling a dog, but the foregoing exemptions shall not apply unless all damages done by dogs therein exempted, to the person or property of another, shall be paid or tendered to the person so damaged, or to his agent within thirty (30) days after the damage is done." Thompson's Shannon's Code, § 2853a.

This statute was passed for the protection of persons and property upon highways, roads, and streets of the state, as well as upon the private property of others.

It is well settled that railroads are highways. 33 Cyc. 37.

In addition to the use of such highways by trains, section men, trackwalkers, and persons intending to become passengers frequently pass along railroad tracks in such a way as to be exposed to dogs that may go thereupon. The statute was designed to keep loose dogs away from such places, and was for the protection of such premises.

We have recently suggested in the case of Chattanooga Railway & Light Co. v. Bettis, 202 S. W. 70, that a planitiff, who violated a statute intended for the protection of the defendant he was suing, was guilty of contributory negligence. We think that such is the law; and, inasmuch as the statute above quoted was intended for the protection of railroads as highways of the state to keep dogs off the right of way, the plaintiff, who allowed his dog to go upon such highway unlawfully, must be held to be guilty of contributory negligence barring his recovery, if this suit be treated as one under the common law.

If the...