East Tennessee, V. & G. R. Co. v. Pratt

• Decision Date: 01 September 1886
• Citation: 1 S.W. 618
• Parties: EAST TENNESSEE, V. & G. R. CO. <I>v.</I> PRATT.
• Court: Tennessee Supreme Court

1 S.W. 618

EAST TENNESSEE, V. & G. R. CO.v.

PRATT.

Supreme Court of Tennessee.

September Term, 1886.

Appeal from circuit court, Knox county.

Baxter, Henderson & Joroulman, for appellant, East Tennessee, V. & G. R. Co. Williams & Sneed, for appellee, Pratt.

SNODGRASS, J.

An earnest petition to rehear this case is presented, and while it raises no new question, and calls attention to no oversight or omission in the original determination of the questions made in the records, being but a reassertion and reargument of the principal question settled by the court, upon mature consideration and by unanimous agreement, yet, in view of its importance, we have examined it, and again announce our view of the law in accordance with the original opinion in affirming the judgment. The declaration alleged that defendant wrongfully and negligently run its engine and cars in and upon and against W. C. Pratt, husband of plaintiff, whereby, and on account of which, the said W. C. Pratt was wounded, bruised, and mangled in body, head, arms, and legs, thereby causing great mental and physical pain and suffering. By reasons of the wounds and bruises aforesaid, wrongfully and negligently inflicted as aforesaid, the said W. C. Pratt then and there died. No reference was made to the statute, either by averments that the provisions of the Code, § 1298, were not complied with, or by statement of facts so showing, and defendant, therefore, insisted that evidence that these provisions were not complied with was irrelevant and incompetent, except so far as it might indicate negligence independent of the statute; and the court was asked to charge the jury as follows: "The declaration in this case is what is called a `common-law declaration.' It does not profess to be based upon a violation of the statute of Tennessee, enacted to prevent accidents upon railroads. I therefore instruct you that the liability of the defendant, if any exists, does not depend upon whether or not it complied with the provisions of the Code in this regard. All evidence going to show whether or not there was a lookout ahead, or whether or not the whistle was sounded or brakes put down, can only be looked to for the purpose of determining whether or not defendant was guilty of negligence outside and independent of statute," etc. His refusal to do so was the principal error assigned, elaborately argued, and carefully considered in the hearing before us, and now repeated in the petition for rehearing.

The counsel for plaintiff in error assumes that the precautions made necessary to be observed by section 1298 of the Code create duties that would not have devolved upon the servants of the...