Freeman v. Illinois Cent. R. Co.

• Decision Date: 21 June 1901
• Citation: 64 S.W. 1,107 Tenn. 340
• Parties: FREEMAN v. ILLINOIS CENT. R. CO.
• Court: Tennessee Supreme Court

64 S.W. 1

107 Tenn. 340

FREEMAN v. ILLINOIS CENT. R. CO.

Supreme Court of Tennessee.

June 21, 1901

Appeal from circuit court, Weakley county; W. H. Swiggart, Judge.

Action by M. T. Freeman, as administrator of B. T. Robertson deceased, against the Illinois Central Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Jos. E Jones, A. A. Hornsby, and Fentress & Cooper, for appellant.

R. E Maiden and F. P. Hall, for appellee.

WILKES J.

This is an action for damages for personal injury resulting in the immediate death of B. T. Robertson. It is brought by his administrator for the benefit of his next of kin, who are stated to be his mother and brother and sister. There was a trial before the court and a jury, and a verdict and judgment for $1,999, the amount sued for, and the railroad company has appealed and assigned errors. While quite a number of errors are assigned, only a few of them are material or need be considered.

The facts necessary to be stated are that Robertson was in the employ of the road as one of a bridge crew, whose duty it was to go up and down the road repairing bridges, trestles, etc. It was necessary, in the discharge of his duties, to load and unload timbers and lumber along the line of the road. It appears that on the morning of the accident the deceased with several others, was engaged in loading timbers upon a flat car at Obion station. Three or four box cars were attached to the flat car, and they were standing upon a side track about 30 feet north of where it was crossed by Main street, one of the most public thoroughfares in the town. The crew was in charge of a pro tem. foreman named Burton. The timber being loaded was quite heavy, being some 14 feet long and 12 inches square. Two of the laborers stood upon the flat car to receive the timbers, and others stood on the ground to push and lift them up. They were not furnished with any skids, and, having to lift the heavy timbers, it was easier to raise them up and push them on the car from the end than from the side. While the deceased, with some others, was standing between the tracks in front of the car, loading timbers from the end, a local freight backed in on the track on which the flat car and box cars were standing, for the purpose of coupling to them. This train came in at a rapid and unusual rate of speed, without warning or signal, and struck the box cars with violence, and caused them to push the flat back against the deceased, running over him and crushing him as he was engaged in the act of loading a piece of timber on the flat. The view of the deceased, as well as of the other hands engaged in loading, was obstructed by the box cars which intervened between them and the incoming train, so that they did not know of its approach. It seems that the train struck the standing cars with such force as to derail the south end of the flat car, by knocking it off the track about five feet, or it was thrown off by running over the deceased. The evidence is quite clear that the conductor and engineer of the train knew that these parties were engaged in loading the flat car, and it is also clear that the bridge crew had no connection with the employés operating the train.

We are of opinion that the appellant is not in position to question the findings of the jury upon the evidence. It appears that its motion for a new trial and in arrest of judgment were made at the same time and in the same motion. A motion for a new trial and in arrest of judgment cannot be made together and at the same time, and a motion in arrest of judgment is a waiver of a motion for a new trial. Snapp v. Moore, 2 Overt. 236; Insurance Co. v. Crunk, 91 Tenn. 378, 23 S.W. 140. But it is not seriously insisted that there is no evidence to support the verdict, so far as the negligence of the company is involved, but the defense is on other grounds.

The declaration avers that the deceased left no widow or children or father surviving him, but left a mother, brother, and sister. The contention was made in the court below and in this court that the mother was the next of kin to the deceased, and that it was error to allow the plaintiff to show that deceased had a brother and sister, as they could have no interest in the recovery, and that the fact that there were a brother and sister induced the jury to give greater damages than they otherwise would have given. We think that the conclusion is hardly warranted upon any reasonable hypothesis, and cannot see that the fact would have at all increased the amount of damages awarded, and such assumption is not well grounded. The action in the case is based on the provisions of the statute (Shannon's Code §§ 4025-4029, inclusive). These sections prescribe the persons for whose benefit the action may be brought, and, in substance, that the right of action vests primarily in the widow, next in the children, or in the personal representative, for the benefit of the widow or next of kin. It has been held that, if no widow or children survive, then the right of...