Citizens' Rapid-Transit Co. v. Dew

• Decision Date: 09 February 1898
• Citation: 45 S.W. 790,100 Tenn. 317
• Parties: CITIZENS' RAPID-TRANSIT CO. v. DEW.
• Court: Tennessee Supreme Court

45 S.W. 790

100 Tenn. 317

CITIZENS' RAPID-TRANSIT CO. v. DEW.

Supreme Court of Tennessee.

February 9, 1898

Appeal from circuit court, Davidson county; J. W. Childress, Judge.

Action by J. H. Dew against the Citizens' Rapid-Transit Company. Judgment for plaintiff. Defendant appeals. Affirmed.

J. S Pilcher, for appellant.

J. B De Bow, for appellee.

WILKES J.

This is an action for negligently injuring and killing a dog. It was commenced before a justice of the peace, and on appeal was tried in the circuit court, before the court and a jury. There have been two trials, the first resulting in a mistrial, and the second in a verdict and judgment for $250 and defendant, the Rapid-Transit Company, has appealed and assigned many errors. They are too numerous to treat separately and seriatim.

It is said there is no evidence to sustain the verdict. It appears that the Rapid-Transit Company operates a line of electric street cars from Nashville to West Nashville, over a highway known as the "Charlotte Pike." This pike is a public thoroughfare for wagons and other vehicles, horses cattle, pedestrians, and is much used and frequented. The plaintiff was passing over this turnpike, returning from a nutting expedition into the country, in a conveyance, with his two daughters. He had taken his gun with him, and also a favorite bird dog. The accident occurred about 5 o'clock in the evening. The dog was running along the turnpike or thoroughfare some 150 or 200 yards in front of the plaintiff's vehicle, when he started across the tracks of the streetcar line, which were laid on the bed of the turnpike. Some little birds flying up attracted his attention, and he stopped in the center of the track, and, as some witnesses say, was in the act of "setting" the birds. The term "setting," as used here, has a somewhat technical meaning, and means that he was "standing" and intently looking in one direction. In dog parlance, therefore, "setting" means "standing," and the attitude is also called "pointing." While in this attitude a street car came up rapidly, and some of the witnesses say almost noiselessly, upon him, and ran over and crushed him, so much that his owner, seeing that he was fatally injured, shot and killed him. It appears that the gong was not sounded, the motorman did not shout at the dog, and did not make any effort to check the car until it was so close that it was impossible to prevent running over the dog. The motorman excuses his act by saying that the dog came upon the track so abruptly and unexpectedly, and so nearly in front of the car, that there was no time to stop the car or sound the gong, or take any other precautions. There is other evidence to show that the dog could be seen, and was seen, quite a distance before the car reached him, and the weight of the evidence is in favor of this view of the case. The car was running rapidly and smoothly at the time, the dog was in plain view upon the track, and, according to some of the witnesses, the motorman was looking at him for some distance, and evidently expecting that he would leave the track in time to escape injury.

All other questions out of the way, there is ample evidence to sustain the verdict of the jury as to the killing, the negligence of the motorman, and the reckless running of the cars at a rapid rate of speed, and without due precaution to prevent accidents to animals on the track.

It was not error in the trial judge to charge that the street-car company must have sufficient employés on its cars to operate them in a careful manner, so as to prevent damages or injuries to persons and animals that might go upon the track, and was liable for a failure to do so; the question of what number would be sufficient being left to the jury, under all the circumstances. It appears that at this time and place the motorman was the only employé on the car, and he was doing duty both as motorman and conductor, the latter having left the car after it passed from the more crowded portion of the track nearer the city. The roadway of the street-car company being on the roadway of the turnpike, where persons, horses, and vehicles were constantly passing, and had the right to pass, and on the same grade as the turnpike, were all circumstances for the jury to consider, and they could properly do so under the charge as given. The motorman had also stated that the reason he did not see the dog sooner was because he was looking around at the passengers to see if any desired to get off, so that the charge was called for and appropriate.

It was not error to charge that, inasmuch as the street-car track was laid on the roadway and on the same level with it, the dog was not a trespasser if he went upon the track, inasmuch as the dog was not improperly on the highway.

It was not error to tell the jury that if after the dog was injured his master killed him, under the honest belief that he was fatally injured, this would not prevent a recovery. The action in this case was for both the injury and killing, and, if the jury should have found that the dog ought not to have been killed, still the plaintiff would be entitled to damages for his injuries.

It is said that the judge should have told the jury that the motorman might rely upon the keen sense of hearing, great alertness, intelligence, and active celerity common to dogs, and they might consider and weigh their own practical knowledge as to the nature, character, and quality of dogs, and consider all these matters in reaching a verdict in the case. The request, we think, is too broad. Unquestionably, the jury might take into consideration common knowledge and observation about the habits and qualities of dogs, but it was going too far to say that the motorman might rely upon the quickness and celerity of the dog, and thus absolve himself from all duty and care to prevent the accident, which is virtually what the request implies.

The court sufficiently stated to the jury the rule applicable if the dog appeared so suddenly and immediately in front of the car that it could not be stopped and no precaution could have prevented the accident. The special request on this point was not...