Fink v. Evans

• Decision Date: 12 October 1895
• Citation: 32 S.W. 307
• Parties: FINK et al. v. EVANS.
• Court: Tennessee Supreme Court

32 S.W. 307

FINK et al. v. EVANS.

Supreme Court of Tennessee.

October 12, 1895.

Appeal from circuit court, McMinn county; Arthur Traynor, Judge.

Action by Hillery Evans against Henry Fink and another, receivers of the East Tennessee, Virginia & Georgia Railroad Company. Judgment for plaintiff. Defendants appeal. Reversed.

Harbison & Roberts, for appellants. Gaston & Roberson, for appellee.

WILKES, J.

This suit was commenced before a justice of the peace of McMinn county to recover damages for the killing of two hound dogs belonging to the plaintiff, Evans. The justice gave a judgment for the plaintiff for $37.50 and costs, and the defendant receivers appealed to the circuit court. In that court the case was heard before the court and a jury, and a judgment was rendered for $20 and costs; and the receivers have brought the case to this court by writ of error, and have assigned as errors that there is no evidence to support the verdict, and that it is contrary to the charge of the court, and that the damage is excessive, and that there are errors in the charge of the court.

The facts, so far as necessary to be stated, are that Fink and McGhee were receivers of the East Tennessee, Virginia & Georgia Railroad, and were operating its line, running through McMinn county, with passenger and freight trains. The plaintiff states that he is a fox hunter, and was pursuing his avocation, also in McMinn county, in a locality contiguous to the defendants' line of road. On the night of November 8, 1892, two of the plaintiff's hound dogs were run over by the defendants' train, and one was killed and the other was permanently disabled. Upon the question of the value of the dogs thus killed, plaintiff states that one was a red and white spotted hound, and the other was a red and white hound, but without any spots. They were both good fox dogs, and also good 'possum and squirrel dogs, and were as good "all round" dogs as he ever owned. They had cost him about $10 to raise them, and, up to the time they were killed, had run four races, and he thinks they were worth $25 each. Other witnesses for plaintiff describe the dogs as young, of common stock on the mother's side, but good parentage on the father's side, and they both resembled their father. They further state that for some things they were worth less than a horse, but for running foxes they were worth more, and that it was much easier to buy them than it was to sell them. They also state that they were not well trained, and could not start a fox by themselves, and they estimated their value at from $20 to $35. The witnesses for the receivers, however, state that they had no real value, and that there is no market in McMinn county for hound dogs. We think it not absolutely necessary that we should pass upon contested question of value, as, in our opinion, the cause must be decided on other grounds.

It is insisted that the court erred in charging the jury that a dog is such an animal as the statute contemplates when it requires that the whistle shall be sounded when they are seen upon the track. This is not an error. This court has heretofore held that a dog is such an animal as the statute contemplates.

It is insisted that there is no evidence to support the verdict, and a review of the testimony becomes, therefore, important. The plaintiff's version of the killing is that on the night it occurred he passed up the road between Athens and Mouse creek. It was a beautiful, bright moonlight night,...