Felton v. Newport

• Decision Date: 04 December 1900
• Docket Number: 813.
• Citation: 105 F. 332
• Parties: FELTON v. NEWPORT.
• Court: U.S. Court of Appeals — Sixth Circuit

105 F. 332

FELTON v. NEWPORT.

No. 813.

United States Court of Appeals, Sixth Circuit.

December 4, 1900

Charles R. Head, for plaintiff in error.

Jerome Templeton, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS Circuit Judge.

This case has been here once before. The opinion then given, and which is reported in 34 C.C.A. 470, 92 F. 470, related mainly to certain rulings made upon the former trial in reference to the question whether Helenwood, the place where the accident happened, was an incorporated town, the statute of Tennessee having prescribed certain duties to railroad companies when passing through such places. Special precautions in the blowing of whistles and the stoppage of trains are required in the circumstances enumerated in the statute. The result was that the judgment was reversed mainly for error in that regard, and direction was given for a new trial. This has been had, and another verdict and judgment have been obtained in favor of the plaintiff. The case has been again brought here on writ of error by the defendant. The evidence upon the second trial was substantially the same as that upon the first, except that the actual incorporation of Helenwood was fully proven. The facts are quite fully stated in the former opinion, and they will not be further recited now otherwise than by references in what follows.

The errors assigned may be reduced to three:

First. That the court erred in not granting the request of the defendant below for peremptory instructions to the jury to render a verdict that the plaintiff was not entitled to recover.

Second. That the court erred in not granting the defendant's request to instruct the jury that:

'If the deceased voluntarily got drunk, and went upon the track, and lay down and went to sleep, then, although the jury may believe the precautions of whistling and putting down the brakes, etc., were not observed, then the jury should only give nominal damages in the case. This would be true if he, drunk, got upon the track, although he may not have gone to sleep.'

Third. That the court erred in not granting the defendant's request to instruct the jury that:

'If Newport was upon the track in front of a moving train, and was not seen by some one upon the engine, but such person was upon the lookout ahead, and in a position to see, but did not see, then the plaintiff cannot recover.'

1. We have had some doubt from the beginning whether the facts and circumstances disclosed by the evidence were such as to remove the case from the region of mere conjecture as to how the accident occurred, and particularly whether it was shown with sufficient certainty that Newport, the deceased appeared upon the road as an 'obstruction,' within the meaning of subdivision 4, Sec. 1574, Shannon's Code Tenn., which requires that, 'when any person, animal or other obstruction appears upon the road, the alarm whistle shall be sounded, the brakes put down and every possible means employed to stop the train and prevent an accident ' The accident occurred in the night. Six trains passed over the road between the time when Newport was last seen going north from the depot on the track and the discovery of his body between the rails, not far away, early next morning. Some of these trains went north, and others south. The first went north. One of his feet was found drawn fast into the frog of a switch opening to the south. The body was mangled, and was recovered in pieces. The trunk was found at considerable distance from the switch, where the foot was found. There were...