East Tennessee & W.N.C.R. Co. v. Winters

• Citation: 1 S.W. 790,85 Tenn. 240
• Parties: EAST TENNESSEE & W. N. C. R. CO. v. WINTERS. [1]
• Decision Date: 02 November 1886
• Court: Supreme Court of Tennessee

1 S.W. 790

85 Tenn. 240

EAST TENNESSEE & W. N. C. R. CO. v. WINTERS. ^[1]

Supreme Court of Tennessee.

November 2, 1886

Appealed in error from circuit court, Carter county.

N. M Taylor and Robert Burrow, for plaintiff in error.

S. J Kirkpatrick, for defendant in error.

FOLKES J.

On the night of nineteenth November, 1884, Daniel Winters, the then husband of plaintiff, was returning from a grocery with three companions. They had been drinking all day, and all of them were more or less under the influence of liquor; and, while crossing a long and very high trestle, singing at the top of their voices, a special train came up behind them. One of the men swung over the side of the trestle, holding onto the outer guard-rail; another got out on the end of a cap or cross-beam; the third man sought shelter between the rails by getting down on the cap,--a space which seems to have been about three feet long, twenty-four or six inches wide, and about thirty or thirty-three inches deep from the top of the iron rail. The deceased attempted to get into this same cap already occupied by one of his companions; and it would seem that he succeeded in getting in sufficiently to avoid the pilot and the ash-box of the engine, but was struck by the brakebeam of the tender, dragged from his retreat, and killed. This action is brought by the widow to recover damages for the killing. There was verdict and judgment for the plaintiff for $1,700; and the railroad company has brought the cause to this court by writ of error. Several reasons are assigned by the plaintiff in error why the judgment should be reversed.

It is claimed the proof does not show that any "person animal, or other obstruction appeared upon the track," and therefore the engineer was not as charged by the court, required to observe the statutory precautions of sounding the alarm whistle, putting down brakes, etc.; citing, in support of this position, Moran v. Railroad Co., 2 Baxt. 379. The engineer and fireman both testify that they were on the lookout ahead, and that no person or obstruction appeared on the track. It is insisted that, as the proof shows the track was straight for a quarter or half mile in the direction from which the train approached the trestle, and the night dark, the deceased and his companions saw the reflected light of the engine, or felt the concussion caused by the engine upon getting on the trestle, before the lookout on the engine could see them, and had immediately sought their respective places of shelter, so that, when the engine approached near enough for them to have been seen, the men were not visible, and the train passed without having sounded any alarm. If this were all the proof, the position might be well taken; but, inasmuch as there is testimony from one or more of the companions of deceased to the effect that the first intimation they had of the approach of the train was the full light of the head-light on the cross-ties in front of them, (from which it is argued that the train coming, as it was, up behind them, must have been sufficiently near for the engineer to have seen them had he been on the lookout,) we think there was evidence which warranted the court in giving the charge complained of.

The next error assigned is that, in charging the jury, the trial judge, after defining contributory negligence, used the following language: "If the evidence shall show you that deceased went upon the railroad bridge in an intoxicated condition, about schedule time for the train to pass, this would constitute gross negligence." We are of opinion that this charge, taken in connection with the fact that the court had allowed, over the objection of counsel for the plaintiff in error, witness after witness to testify that the train which caused the death of deceased was "a special;" that "it was running out of schedule time;" that it "was running faster than the regular train usually ran;" that "it was making a special trip for one passenger, who was paying a special price for the train to make connection with the E. T., V. & G. R. R.,"--was well calculated to mislead the jury, and cause them to understand that, to some indefinite extent, the liability of the railroad for the killing of a person on its track was increased by these facts so admitted in evidence. Of course, there can be no question as to the right of the railroad to run special trains at such times, and on such terms, and at increased speed, within the limit of prudence and safety to its passengers, as the necessities or convenience of its business, general or special, may require. The jury might well have inferred from the language of the charge already quoted that it would not be gross negligence for an intoxicated man to undertake to cross such a dangerous bridge at other than schedule time for a train to pass. Especially is the charge misleading in this regard when we see that, immediately following the language quoted, the court adds: "Any negligence of the injured person, in such case, which may have contributed to cause the accident, or without which the accident would not have occurred, will be taken into consideration by you in mitigation of damages." "In such case" could naturally be understood as referring to and limiting the charge already given to the case of an intoxicated person going on the trestle "about schedule time."

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