Gill v. Louisville & N.R. Co.

• Decision Date: 10 March 1908
• Citation: 160 F. 260
• Court: U.S. District Court — Eastern District of Tennessee
• Parties: GILL v. LOUISVILLE & N.R. CO.

160 F. 260

GILL v. LOUISVILLE & N.R. CO.

United States Circuit Court, E.D. Tennessee, Northern Division.

March 10, 1908

Jno. W Green, for plaintiff.

Cornick Wright & Frantz, for defendant.

McCALL District Judge.

This case is before the court upon defendant's demurrer to the declaration. In substance, the declaration avers that plaintiff's intestate was an employe of the defendant as a locomotive engineer, and that while in the discharge of his duty as an engine driver the engine was derailed and plaintiff's intestate was killed.

It is averred that the derailment was caused by the engine colliding with a cow that had strayed upon defendant's unfenced railroad track, and that 'his death was wholly due to the carelessness and negligence of the defendant in failing to erect and maintain a fence along its said track so as to prevent live stock from going thereon,' and that defendant 'wholly failed to fence its track in Blount county (wherein the accident occurred), or to protect and guard its track, rails, and right of way in said county by fence or inclosure of any sort, in direct violation of law, and especially the fencing act, passed by the Legislature of Tennessee for the protection of life and property, both on the trains and upon the tracks.'

The defendant demurs to the declaration and says:

'(1) There is no law or statute in force obligating or requiring the defendant to fence its tracks in the state of Tennessee for the protection of its employes, such as plaintiff's intestate, and it is not negligence to fail to so fence; and (2) because the plaintiff does not show or allege that the absence of such fence was not known, or by the exercise of ordinary care could not have been known to plaintiff's intestate, said James Gill, and the risk incident thereto, was assumed by him.'

It is insisted in behalf of plaintiff that the declaration states a cause of action both at common law and under the statute of Tennessee. In so far as it is assumed that the declaration states a cause of action at common law, I am clearly of the opinion that the demurrer, to that extent, must be sustained. Cowan v. Union Pacific (C.C.) 35 F. 45; Newsom, Adm'r, v. N. & W.R.R. Co. (C.C.) 81 F. 133; Henninger, Adm'r, v. Southern Ry. Co. (oral charge to the jury); Judge C. D. clark, Knoxville, Tenn., March 21, 1899. The Cowan Case, supra, was decided by Judge Brewer, who said:

'Neither common nor statute law in Colorado requires that a railroad company fence its track to prevent cattle straying upon it, and, where there is no obligation, there is no liability.'

In the Newsom Case, supra, the court said:

'At common law a railway company is not bound to maintain fences sufficient to keep cattle off its lines. Where there exists no statutory regulations defining the duties of railway companies in respect to fencing, they are under no obligations to make or maintain fences between their roads and the adjoining lands. They come within the common-law rule, and at common law the owner of the land is not obliged to fence against cattle of his neighbor.'

The Henninger Case, supra, was decided by Judge Clark in this court, March 21, 1899, but was not reported. He says:

'The declaration is specifically based upon the statute, and it would be sufficient to authorize a recovery at common law, notwithstanding it is so predicated upon the statute, if, under the common law, a right to recover existed, which it would, if the company was under an obligation to fence its track at common law. But it is not.'

Passing to the other question: Does the declaration state a cause of action under the laws of Tennessee?

The law of Tennessee, relating to the fencing of railroads, is found in Acts 1891, p. 220, c. 101. We quote sections 2 and 3 of said act in full.

The other sections thereof, not being deemed pertinent to the question under consideration, are omitted.

'Sec. 2. Be it further enacted that any person, company or corporation, or lessee or agent thereof, owning or operating any railroad within the state of Tennessee, shall be liable for the value of any horse, cow or other stock killed, and reasonable damages for any injury to such live stock, upon or near the track of any railroad in this state, whenever such killing or injury is caused by any moving train, or engine or cars upon such track, provided, that contributing negligence on the part of the plaintiff in any action or suit to recover damage for such killing or injury may be set up as a defense; but, provided, further, that the allowing of stock to run at large upon common unfenced range, or upon inclosed land owned or in possession of the owner of such stock, shall not be deemed or held to be such contributory negligence, provided, further, that in any such suit or action, proof of willful intent on the part of the plaintiff therein to procure the killing or injury of any such stock in the manner aforesaid, shall defeat the recovery of any damages for such killing or injury.

'Sec. 3. Be it further enacted that no person, company or corporation owning or operating any railroad in this state, shall be liable under the foregoing section of this act, for any damage for the killing or injury of any such live stock, when the track of said railroad is inclosed by a good and lawful fence and good and sufficient cattle-guards.'

This language is clear and unambiguous. The third section of the act provides that no person, company, or corporation owning or operating any railroad in Tennessee shall be liable under the second section of the act for any damage for killing or injuring any live stock, when the track of such railroad is inclosed by a good and lawful fence, and good and sufficient cattle guards. From the plaintiff's view point, the most that can be said for this act is:

'That the object was to induce railroad companies to fence their track, primarily to the interest of the traveling public, and, secondarily, for the protection of live stock along the lines of travel. ' Railroad v. Russell, 92 Tenn. 110, 20 S.W. 784; Railroad v. Thompson, 101 Tenn. 201, 47 S.W. 151.

That, however, is far from holding that the act by express terms, or by intendment creates a right of action in favor of an employe who might be injured by the derailment of a train caused by a collision with stock that happened to stray upon an unfenced railroad.

What is the inducement offered? The second section of the act makes all persons, companies, or corporations owning or operating railroads in Tennessee, absolutely liable for all live stock killed or injured upon or near their tracks, when such killing or injury is caused by a moving train, provided that contributory negligence on the part of the plaintiff may be set up as a defense, and that proof of willful intent on the part of the plaintiff to procure the killing or injury of such stock shall defeat a recovery, but the allowing of stock to run at large upon common unfenced range, or upon inclosed land shall not be deemed to be such contributory negligence. The third section exempts such railroad company from such liability if the track of such railroad is inclosed by a good and...